ON THE
subjects to which it is usually applied by
BRITISH COURTS 01’ JUSTICE IN INDIA.
COSirlUSD AKO TKAKSLATED FBOU
AUTHORITIES IN THE ORIGINAL ARABia
C
IT
PART SEGaNPy •
CONTAINING
iTlIE DOCTRINES OF TiIe IMAMEEA CODE OF JURISPRUDENCE
ON THE MOST IMPORTANT OF^TUE SAME SUBJECTS.
By NEIL B. E^'BAILLI^ M.R.A.S.
LONDON:
SMITH ELDER AND CO., 16, WATERLOO PLACE.
i«69.
TO THE RIGHT HONOURABLE
JOHN LORD ROMILLY
MASTEB OF THE 110LL8,
PRESIDENT OF THE INDIAN LaV COMMISSION^
See. &C. &C.
THIS SECOND PART
OF
. I
% of P^ooj^uniOTttiraw
IS MOST RESPECTFULLY DEDICATED.
CONTENTS.
PAOB
Introduction
Book*!.
OF OR MARRIAGE.
CHAPTER
I. Of Permanent Marriaqk 1
Section First , — Form and Laws of the CQUitnfct ih.
Section Second , — ^Persons who have Power to enter into the
Contract - 6
Section Third . — The Causes of Prohibition in Marriage 13
First Cause of Prohibition, Nusuh, oi^ Con-
sanguinity ib.
Second Cause of Prohibition, Fosterage 15
Third Cause of Prohibition, Affinity 21
Miscellaneous Cases 24
Fourth jOause of Prohibition, Completion of
Number. 27
Is if th Cause of Prohibition, Zidit, or Impre-
cation 29
Sixth Cai^so of Prohibition, Iniidclity
Section 'fourth . — Things conncctci^ with the Contract 34
II. Of Temporary Marriage 39
^eeftoTt First , — ^The Pillars of the ContAct ib.
Section ^econc/.— -The Laws of tjjc Contract 42
Vi CONTENTS.
CHAPTER ^AQB
III. Of tub Marriagb of Femalb Slaves 45
Section First — Marriage of Female Slaves by Contract f6.
Section Second , — Servile Marriage, tr the Marriage of Female
Slaves by Right of Proixjrty 52
Section Third , — Of Isteelad ^ 57
IV. Of Causes for which Marriaoe mat be Cancelled 59
Section First , — ^Personal Blemishes in Man and Woman ih.
Section Second , — Laws relating to Blemishes 61
Section Third , — or Deception 63
V. Of ** Muhr,** or Dower 67
Section First , — Valid Dower ih.
Section Second, — Tufweez^ or Gratuitous Surrender 70
Section Third , — The Laws of Dower 73
Branches from the i)receding 79
Section Fourth , — Disputes regarding Dower 81
VI. Of “Kism,” ‘‘ Nushooz,** and "Shbkak” 83
Section First — Kism^ or Partition.... ih.
Section Second. — Nushooz, or Rebellion 87
Section Third,^Shekaky or Discord 88
VIL Of Laws relating to Children 90
Section First , — Ofithc Estaldishment of Parentage ih.
Section Second . — Of the Suckling and Custody of Children 94
VIII. Of Maintenance 97
Section First — Of^he Maintenance of Wives ih.
Section Second . — Of the Maintenance of Relatives 102
Section Third , — Of the Maintenance of Slaves and of Beasts . 104
Book II.— (p. 107.)
OF DIVORCE.
I. Op **Tulak” or Repudiation 107
Section First. — Its Pillars ih.
Section Second.^Oi the different kinds of Tuldh, or Repudiation 118
II. Op Appendages to Repudiation 122
Section JFVrAl.— Repudiation by a^ick Man .nw. ih.
• Branched frogi the l^rcceding 123
Section Second. — How the Prohibition incurred by Three
• Repudiations is^removed 124
•Section 'third , — Of JRuJatf or Revocation 126
CONTENTS.
vii
CflAPTEB JPAOB
III. Op Khoola and Moobarat — 129
Section First — Of Khoola : Its Form^ Hansom, Conditions,
and Laws .f. ib.
Section Second, — Of Moobarat 136
IV. Op Zihab 138
Section First — ^Its Form, Conditions, and Effects ib.
Section Second, — ^Expiation - 142
V. Op Eela 147
Branches from the Preceding 149
VI. Op«Lian” 162
Section First — ^Its Pillars i6.
Section Second , — Laws of Lidn 157
VII. Op “Iddut” 160
Section Women on whom it is not Incumbent ib.
Section Second, — ^Womcn who Reckon by Koorqs 161
Section Third, — Women who Reckon by Montlis 162
iSccfiowFoMr^/*.— Of Pregnant Women 163
Section Fifth, — Iddut for Death 164
Section Sixth, — The Iddut and Purification of Slaves 167
Book III. — (p. nSm)
OF ^^SHOOFA,” OR PRE-EMPTION.
I. Op the Things in which « Siioopa ” is Estadt.ished
II. Op tub ‘‘ SiiuPEE,” OR Person to avhom the Right op
Pre-emption belongs
III. Op the Manner in -which the Claim op “ Shoopa,” is
TO BE Asserted
Miscellaneous Cases
IV. Appendages to tub Assumption op Property under a
Right op “Shoopa”
Questions connected -with the voiding op the Right
OP “Shoopa”
V. Op Disputes relative to *^Shoopa” i
175
179
182
187
190
195
198
via
GOKTBNTB.
Book IV.— (p. 203.)
OF HEBBAT/* OR GIFTSr
CHAPTBB
I. IXTSODUCTOltY
11. Op the Laws of Gift
PAOB
203
207
Book V. — (p. 211.)
OP WOOKOOP ’’ AND ‘‘ SUDUKAT/’ OR
APPROPRIATIONS AND ALMS.
I. Op “Wukf,” or ArpROPRiATioN 211
Section jFYr^A— Introductory
Section Second , — Conditions 213
Section Thir(J ^ — ^Appendages 220
11. Op “ SuDUKAT,” OR Alms 224
MlSCEfXANEOUS CASES lb,
III. Op ‘‘SooknX” ANp ^'Hoobs” 226
Book VI. — (p. 229.)
OP WILLS.
I. Intboductort.
i
II. Op xiiE “Moosee,” or Testator
III. Op tub Moosa-Biui/’ or Tiiikg Bequeathed
Section First — ^What may be Bequeathed
Section Second, — Of Ambiguous Legacies
IV. Op the Laws op Bequests
V. Op the ** Moosa-Luho,” or Legatee
VI. Of Executors ^
Miscellaneous Cases
^ra. Appendages
229
232
233
ib.
237
240
244
248
251
253
CONTEM'ES^
IX
Book VH.— (p. 261.)
OF “FURAIZ,’’ OR INHERITANCE.
CBAPTEB PAGE
I. Intk 6 ductory 261
Section First , — Causes of Inheritance ib.
Section Second , — Impedimenta to Inheritance 263
Section Third , — Exclusion from Inheritance 270
Section i^ouW/i.— Shares and their Combinations 273
11. Of Inhebitangis by “Nusub,” ob Consanguinity 276
Miscellaneous Cases 278
Miscellaneous Cases 282
Miscellaneous Cases 287
III. Of tub Acknowledgment op ‘‘NusuB^f. 289
IV. Rules begabding tub Inhebitangk of Spouses to each
other II. 294
V. Op InJIEBITANCE by “ WuLA,” or rATROXAOB 296
1 . The “Wula” of Emancipation ib*
Miscellaneous Cases 298
2 . The "^ula” op Responsibility for Offences 301
3. The “ WuLA ” op “ Iaiamut ” ib.
Miscellaneous Cases ib,
VI. Appendages to the Legal Causes of fiuccESSioN 303
Section First . — Of Succession to the child of a Moolainahy or
woman who has been separated from her husband bjr
Lidn^ and to a Wnlud-ooz^zinOf or Illegitimate Child ib.
Miscellaneous Coses .* 304
Section Second . — Of a Foetus or Embryo in the womb, and of
Lost or Missing Persona 306
Section Third , — Of Persohs drowned or overwhelmed in ruins 308
Section Fourth^^Oi. the Inheritance of Mujoosees or Fire- *
• Worshippers — 310
Miscellaneous Coses 311
VII. Of the Computation of Shares 312
• Section Firsf.— Extractors of the six shares, and how they are
to be treated when several persons are entitled to the
same share a. * • ^
Section Second.— Of Moonasukhat, or Vested Interests 318
Section TVtird.— How to ascertain an llSris portiop of tllo
Turhah, or Dcoeased’s Estate.^ ‘ 32o
X
CONTENTS.
Book Yin.-~(p\ 823.)
INHERITA^NCE. •
CRAPTfiR PAOB
Introduction ! 823
Op Inheritance by Consanguinity.: ih .
Op Inheritance by Affinity 338
Section First 340
Section Second 341
Section Third 344
Op Inheritance by Dominion or Patronage 345
Of the ** WuLA " op Manumission 346
Op ** WuLA ” by Responsibility for Offences 360
Of the “ WuLA ” OP THE “ Imam,” or Doctrine op
Escheatsito tub Public Treasury 362
Op Exclusion 363
Op Impediments to Succession 366
Op the Doctrine of Sharks and Mode of Distributing
Inheritance 377
Index : 406
r
I
Index to Arabic Words explained in tub Text 425
i:-
■'Vv' •' •r--- . ^ A
INTRODUCTION.
The Mussulmans of India are generally Soonnees of tlio
IJanifite sect. But practices peculiar to the Sheeahs have
long prevailed to a great extent in certain localities, and
many avowed professors of the doctrines of that sect are to be
found in places that were subject to Shecati governors in
Mussulman times. The numbers of these votaries would
naturally increase when the governments became hereditary
in Shecah families, and would be multipjied fnore and more
as the local governors became practically independent of the
Supremo Head at Delhi. At length, when the allegiance
became little more than nominal, it is noiw wrprising if, in
some places, the sect of the actual ruler should come to
preponderate over that of the distant and merely nominal
head ; according to the Arabian adage, which says that ** all
people follow the religion of their kings.” The si^ng was
•exemplified to the fullest extent in Persia, whore the whole of
the people have become Shaeahs since the accession of the Soofec
dynasty in a.d. 1499.^ The process of assimilation was less
rapid in India, where, though several of the Nuivabs, or local
governors, were Sheeahs, they acknowledged at least a nominal
dependence on Delhi, and never ventured to make any
ostensible change in the law of their provinces. This was
eminently the case in Oude^ the Ntuvabs of which were
hereditary Viziers of the empire, and, though long virtually
^ •
~v
‘ In that year Ismail, the first of the ihmasty, proclaimed the
Sheedh faith to bo tlio national religion of tho country.— Malcolm's
History of Persia, vol. ii. note, p. 847 . .
xii
INTRODUCTION.
independent, did not throw off their allegiance to it till the
year 1818, when the Nuwab Vizier Ohazi-ood-deen Ilyder,
with the consent, and, indeed,'* at the suggestion, of the
British Goremiuent, assumed the title of Padshah or King.
It was not, however, till the accession of Umjud Ally
Shah, that any formal alteration was made in the law.
Until that time the only Mooftee, or public expounder of the
law, was a Soonnee, and all cases that came before the King’s
tribunals were decided by Soonnee law. The last-mentioned
sovereign appointed a Sheeah Mooftee, and thenceforth the
Sheeah became the general law of the province. Still, how-
ever, in suits where both the parties were Soonnees, or one of
them was a Soonnee and the other a Hindoo, Soonnee law
continued to bo the rule of decision. In all other suits judg-
ment was given according to the Sheeah code.* This system
seems to have continued till the Province was annexed to the
British dominions, by which time the Sheeahs had acquired
BO great an ascendancy that they were found numerically to
preponderate very much over the other sect of Mussulmans.®
After the annexatioh the more equitable rule of the British
Begulations was introduced, and Sheeah law is now adminis-
tered only in suits regarding marriage and inheritance, and
other collateralmatters, where the parties arc Sheeahs. There
is no doubt, however, that its general importance is much
increased by the larger number of persons who have been
brought within the sphere of its operation.
The Word Sheeah, or Sheent, properly signifies a troop or
sect, but has become the distinctive appellation of the
followers of Aly, or all those who maintain that he was the
first legitimate Khulee/ah, or successor to Moohummnd,
though the fourth in actual succession ; and that the Imamut
or spiritual and temporal headship of the Mussulman com-
munity belongs by hereditary right to his descendants by
Fatima, the favourite daughter of the Prophet, and the only
one of his children that left any offspring. Aly was thus,
according to them, the first his eldest son Hussun the
• * Corteipondenee relating to Native Laws in Oude, p. 1C.
* Jhid. p. !). • •
INXHOUUCTION.
XIU
second, his second sou Iloossein the third, and Aly surnamed
Zeen-al-Abtdcen, the 'son of Hoossein, the fourth. On this
Aly's death a schism took pSace in the sect, a part of whom
adhered to one of his sons called Zeyd, thence taking the
name of Zeydians, while much the greater part of them
acknowledged another of his sons named Moohummud Bdkir,
as the fifth Imtim. Moohummvd Bukir was succeeded by his
sou Jdfer Siulik, as the sixth Iiruim ; and these two are the
great heads of the Imameea, as a distinct school of law.
Jdfer Sddik appointed his eldest son Itlimael to succeed him
in the Iminnit, and, on his premature death, nominated his
second son Moom Kazbn, sometimes called Moosey Reza, to
bo his successor. This second appointment gave rise to
another and greater division among the Sheeahs: for part
of them denying Jdfer Sddik's right to make it, declared
in favour of the son* of Ishmael, thence taking the name
of Ishmaeliaiis, while the greater number of them adhered
to Moosa Kaz'm, whom they acknowledged as the seventh
Irndm. From him the dignity descended lineally for five
more generations, till it ended in the "Imam Muhudy, the
twelfth and last, who is supposed by the sect to bo still
alive, though ho has withdrawn for a time from human
observation since his last appearance onr earth. The great
body of Sheeahs who acknowledge Moosa Kazim and his
descendants as the true Imdms are called Athna-asheriahs,
or Twelve-cans, as being followers of the twelve Imdms,
and also Imimeeans, because, according to Mr. Sale,* they
assert that religion consists solely in the knowledge of the
true Imim. But they arrogate to themselves the title of
Moomineen,^ as being the only true believers. During the
absence of the Inidm, the spiritual and temporal government
of the whole Mussulman community is supposed by them to
have devolved on the Moqjtahids, or enlightened teachers of
t^e law. And in Persia, where the sect has prevailed since
the accession of the Soofee dynasty, it was not till a late
period in its history that the actual Obedience of the sovereign
* Preliminary Liseourse to Translation of the Koran, p. 238.
^ * Post, p. 215,
xiv
INTRODUCTION.
to those dovout teachers of the law was in any degree
dispensed with.** Officers with the titfe of Moojtahid were
found in Oude at the time of its ‘^annexatioir. It is probable
that they were appointed soon after the assumption of the
royal title by the Nuivab Vizier. But what wore their duties, or
whether any duties were specially assigned to them, I have not
been able to ascertain. At present, I believe they are confined
to the superintendence and care of endowments for pious and
charitable purposes, though they seem occasionally to be called
upon by the courts of justice for their opinions on Sheeah law.
Of the two sects which have thus so long subsisted side by
side in India, the Sheeah is the earlier as a school of law ; for
Aboo Huneefa received his first instructions in jurisprudence
from the Imam Jafer Sadik, though ho afterwards separated
from him, and established a school of his own. He remained,
however, during life, a devoted partisan* of the family of AlyJ^
But his adherence to it seems to have been only political ; for,
on questions of law, he diverged considerably from the opinions
of his early instructor. The differences between the leaders,
whatever they may 'have been, were probably aggravated by
religious rancour between their followers ; and there are now
many important points on which the schools differ. Of these
I propose to take ir general view in this place ; referring tho
reader for fuller details to tho foot-notes throughout tho volume.
In tho course of my remarks I will advert to one or two
matters that were not sufficient of themselves to form tho
subject of a separate chapter or section of the work. I presnme
some degree of acquaintance with the Hanifite doctrines on
the part of the reader before ho comes to the perusal of
this introduction. The statements of SJieeah doctrine con-
tained in it are accompanied by inferences to the pages of the
text on which they are founded; and the reader will thus
have an opportunity of bringing them to the test of actual
comparison before relying upon them as of any legal authority.
With regard to the sexes, *any connection between them
i^hich id not sanctioned *by<some relation founded upon con-
* Inumeia Digest, p. 142, note.
History of Mo%ammedanism, p. 287.
INTBODUCTION.
XV
tract or upon slavery is'denounced by both the sects, as zina, or
fornication. But, according to the Hanijites, the contract must
be for the lives of^the parties, or tho woman be the slave of the
man ; and it is only to a relation founded on a contract for life
that they give the name of nikdh or marriage. According to
the Sheeahs, the contract may be either temporary, or for life,
and it is not necessary that the slave should be the actual
property of the man ; for it is sufficient if the usufruct of her
person be temporarily surrendered to him by her owner. To a
relation established in any of f^eso ways they give the name of
nikdh or marriage ; which is thus, according to them, of three
kinds ; permanent, temporary, and servile (1). It is only their
permanent marriage that admits of any comparison with the
marriage of tho Hanijites. And here there is, in the first
place, some difference in the words by which tho contract is
effected. According to tho Hanijites, tho worda may bo sureeh
(express) or kinayat (ambiguous). According to the Sheeahs,
they must always be express (1) ; and to the two express terms
of tho other sect (nikdh and tuzweej) they add a ‘third (mootd),
which is rejected by the others as insftfficient. Further,
while the Hanijites regard tho presence of witnesses as
essential to a valid contract of marriage, the Sheeahs do not
deem it to bo in anywise necessary. The eBlTses of prohibition
correspond, to some extent, in both schools ; but there is this
difference between them, that the Hanijite includes a tliffer en co
of Bar or nationality among tho causes of prohibition, and
excludes lidn, or imprecation, from among them ; tvhile the
Sheeah excludes the former, and includes the latter (29) . There
is, also, some difference between them as to the conditions and
restrictions under which fosterage becomes a ground of prohi-
bition. And, with regard tg infidelity, though both schools
entirely prohibit any sexual intercourse between a Mooslimah
or Mussulman woman and a man who is not of her own
religion, tho Hanijite allows of such intercourse, under tho
sanction of marriage or of shivery, between a Mooslim and
any woman who is & Kitabeedh, that is, who belong® to any
sect that is supposed to have a revealed religion, while the
Sheeah restricts such connection to telnporaiy. and -servile
marriages (29). Among Kitabemhs both schools include
XYi
INTBODUCTION.
Christians and Jews, but the Hanijite i*ejects Majooseeaha or
fire - worshippers, who are included among them by the
Sheeah (W). « ^
The Sheeahs do not appear to make any distinction
between invalid and valid marriages, all that are forbidden
being apparently void according to them. But the distinction
is of little importance to the parties themselves, as under
neither of the schools does an unlawful marriage confer any
inheritable quality upon the parties ; arid the rights of the
children born of such marriages are determined by another
consideration, which will be adverted to in the proper place,
hereafter.
With regard to the servile marriage of the Slieeahsy it is
nothing more than the right of sexual intercourse which every
master has with his slaves ; but there is the same difierence
between the t\^o sects, in this case, as in that of marriage by
contract. According to the Hanifites the right must bo
permanent, by the woman’s being the actual property of the
man. According to the Sheeahs, the right maybe temporary,
as when it is conceded for a limited timq by the owner of the
slave (52). When a slave has borne a child to her own master,
which he acknowledges, she becomes his oomA’ivulud or
mother of a chTld, ^ind cannot be sold, while she is entitled to
emancipation at her master’s death. According to the Hani-
Jitesy these privileges are permanent, but, according to the
Sheeahs, the exemption from sale is restricted to the life of
her child, and her title to emancipation is at the expense
of her child’s share in the master’s estate (57). If that be
insufficient, her enfranchisement is only pro taiito, or so far
as the share will go. Where the child’s father has only an
usufructuary right in the mother, the child is free (56), though
the mother, being the property of another, does not acquire
the rights of an oom~l~wulu(L
With regard to the persons who may be legally slaves,
there seems to be little, if any, difference between the two
sects. According to the Sheeahsy slavery is the proper con-
dition of hurubees, or enemies, with the exception only of
Christians, Jews, and Majoosees, or fire-worshippers, so long
as they conlinue in a stajie of zimmy^t, or subjection to the
• /
INTBODtIOTlON.
xvii
Massulman community! If they renounce their zmmwt, they
fistll back into the condition of ordinary kurubeet ; and if a
person should buj^&om a hUrubee, his child, or mfe, or any
of his consanguineous relations, the person so purchased is to
be adjudged a slave.^ There seems also to be but little differ-
ence in the manner in which slaves may be enfranchised, or
their bondage qualified by kitalmt and tudbeer. But there is
an important difference as to children; for, according to the
Hamfitea, a child follows the condition of its mother, being
free or a slave, as she is the ohe or the other ; while, accord-
ing to the Sheeaha, it is free, if either of its parents be so (46.)
Both the sects are agreed that marriage may be dissolved
by the husband at any time at his pleasure, and to such
dissolutions they both give the name of tvldk. But tho
Hamfitea include under that term klioolA, which is a release
given to the woman by her husband, at her own request;
lidn, where tho separation is only consequential on a chaise
of adultery by the husband against his wife ; and zihar and
eela, by which connubial intercourse is susponded'until expia-
tion is made by the husband on account of certain expressions
used by him towards his wife. They, however, also employ
the word tul&k in a more restricted sense, by which it is con-
fined to dissolutions of the marriage tie efiSeeted by tho use
of that word, or others which are deemed equivalent to it.
TvMk, in its widest sense, I have translated in what I may
now term the First Part of this Digest by the word divorce ;
and, in its narrower acceptation, by the word repudiafio^.
KhoolA, and the other subjects just mentioned, are treated
by the Sheeaha as quite distinct from twldk, in separate books ;
but, as they are tdl nearly akin to it,' I have followed the
arrangement of the Digest, and included them all together
with tuldk proper, or repudiation, under one general head of
divorce.
There are some important differences between the repu-
diation of the two sects. Thus, awhile the HcmifiUa recognize
two forms, the Soonnee and Budeme^, or regular and irre^ar,
as being equally efficacious, and subdivide the regular into
‘ 8hwaya-ool-Ialam,j^. 951 .
XTiii
IMTBODUCTION.
two other forms, one of which they designate as ahsun, or
best, and the other as husun, or good, — ^the Sheeahs reject
these distinctions altogether, recognizing only one form of the
Soonnee, or regular (118). So, also, as to the expressions by
which repudiation may be constituted ; while the Hanijites dis-
tinguish between what they call mreeh, or express words, which
are inflections of the word iuidk, and various expressions
which they term kinayat, or ambiguous, the Sheeahs admit
tho former only (118). Further, the Hanijites do not require
intention when express words are used ; so that, though a man
is actually compelled to use them, the repudiation is valid
according to them. Nor do they require the presence of
witnesses as necessary in any case to the validity of a repudia-
tion; while, according to the Sheeahs, both intention (108), and
the presence of two witnesses in all cases, are essential (117).
Both sects agree that repudiation may be either bdin
(absolute), or rujaee (revoeable) ; and that a repudiation given
three times cannot be revoked, nor a woman so repudiated be
again married by her husband until she has been interme-
diately married to another man, and ^he marriage with him
has been consummated. But, according to the Hani/ites,
repudiation may be made irrevocable by an aggravation of the
terms, or the'odi^’tion of a description, and three repudiations
may be given in immediate succession, or even rinico contextu,
in one expression ; while, according to the Sheeahs, on the
other hand, the irrevocability of a repudiation is dependent
on thee state in which the woman may be at the time that it
is given; and three repudiations, to have their full effect,
must have two intervening revocations (119). To the hdin and
rujaee repudiations of both sects, the Sheeahs add one pecu-
liar to themselves, to which they give the name of the tvldk-
ool-iddut, or repudiation of the iddut, and which has the
effect of rendering the repudiated woman for ever unlawM to
her husband, so that it is impossible for them ever to T^rry
with each other again (119).
, T]^e power of revocation continues until the expiration of
the iddut, or probationary period for ascertaining whether a
woman is pregnant or not. After it has expired, the repu-
diation becomes absolute^ according to both schools. So long
intboduotiok.
xix
as it is revocable, the 'parties are still in a manner husband
and ^e ; and if either of them should happen to die, the other
has a right of inhe^tance in fbe deceased’s estate (294).
With regard to parentage, maternity is established,
according to the Hanifites, by birth alone, without any
regard to the connection of tho parents being lawful or
not. According to the Sheeahs, it must in all cases bo
lawful; for a wvlvd-ooz-zina, or illcgitimato child, has no
descent, even from its mother ; nor are there any mutual rights
of inheritance between them (805). For the establishment
of paternity there must have been, at tho time of the child’s
conception, according to both sects, a legal connection between
its parents by marriage or slavery, or a semblance of either.
According to the Ilanifitcs, an invalid marriage is sufiScient
for that purpose, or oven, according to tho head of the school,
one that is positively unlawful ; but, according to tho
Sheeahs, the marriage must in all cases be lawful, except
when there is error on tho part of both or either of the
parents (873). Again, as to children by slaves, express acknow-
ledgment by tho father is required by both the sects, except
when the slave is his oom-i~wulud, or has already borne a n'hild
to him ; for, though, according to tho Sheeahs, there are two
reports on the subject, yet, by the most getfSiraUy received of
these, a slave does not become tho ^rash or wife of her master
by mere coition, and her child is not affiliated to him without
his acknowledgement (156). With regard to children begotten
under a semblance of right, tho Ilanijites require some
, basis for the semblance in the relation of the parties to
each other; while, according to the Sheeahs, bona fide
belief on the port of the man that the woman is his wife or
his slave seems to be all that is required ; while no relation
short of a legal marriage or slavery, without such belief either
on the part of the man or the woman, would apparently be
sufficient.
On the subject of testimony, both schools require that it
shall be direct to the point in issye f and they also seem to
bo agreed that when two or more witnesses concur in assert- *
ing a fact in the same terms, the judg^ is bound by their
testimony, and must gwe his judgment in conformity with
• 62 •
INTRODUCTION.
zz
it. 9 They agree in requiring that‘ a witness should in
general have full knowledge, by the cognizance of his own
senses, of tho fact to which is boar^g testimony; but
both allow him, in certain ezceptiondl cases, to testify on
information received from others, or when ho is convinced
of the foct by inference from circumstances with which it is
connected.
NitsvJ), or descent, is included by both sects among the
exceptional facts to which a witness is allowed to testify
when they are generally notorious, or when he has been
credibly informed of them by others. But, according to tho
Hanifites, it is enough if the information be received from
two just men,' or one just man and two just women, while
the Sheeaks require that it should have been received from
a considerable number of persons (jmnaut) in succession,
without any ^suspicion of their having got up tho story in
concert. The Hanifitea class marriage among the excep*
tional facts together with ntisid) : but, according to the
Sheeaks, it';tuoro properly follows the general rule which
requires that tho witness should havp tho direct evidonco
of his own senses to the fact to which he is giving his
testimony. They seem, however, to admit an exception in
its favour ; for 5hey reason, that as we adjudge Khoodeijah
to have been the mother of Fatima, the daughter of the
Prophet, though we know it only by general notoriety and
tradition, which is but continued hearsay, so also we may
equally decide her to have been the Prophet’s wife, for which
wo have tho same evidence, though we wore not present at
tho contract of marriage, nor ever heard tho Prophet acknow-
ledge it.”
Both sects are agreed that a witness may lawfully infer
and testify that a thing is tho property of a particular person
when he has seen it in his possession ; and so, according to
the Hanifitea, " when a person has seen a man and woman
dwelling in the same house, and behaving familiarly mth
* I have not found any express statement to this effect in tho i7ooAr
of SXuhadut in the Sheraya, but it is everywhere implied.
■ “ Shuraya, p 604. ,
INTBOBUCTION.
XX
each other in the manner of married persons, it is lawful for
him to testify that she is his wife, in tho same way as when
he has seen a spi^^cific thin^in the hands of another.*' The
Sheeahs do not apply this principle of inference to the case
of marriage, and there is no ground for saying that according
to them marriage will bo presumed in a case of proved con-
tinual cohabitation.”
With regard to the remaining subjects treated of in this
volume ; there is a difference between the two schools as to
the person who is entitled to claim a right of shoofdy or
pre-emption. According to the Hanijites the right may be
claimed, firstly, by a partner in the thing itself; secondly,
by a partner in its rights of water and way ; and, thirdly,
by a neighbour. According to tho Sheeahs, the right belongs
only to the first of these, with some slight exception in favour of
tho second. The claim of tho third they reject altogether (179).
In gift tho principal difference between tho schools is that
a gift of an undivided share of a thing, which is rejected by tho
lianljites, is quite lawful according to the Shemhs (204). In
appropriation and alms there do not seem fo be any differences
of importance between the two schools. And in wills tho
loading difference seems to be, that, while according to tho
Hanifites a bequest in favour of an heir iflT positively illegal,
it is quite unobjectionable according to the Sheeahs (244).”
In respect of inheritance there are many and important
differences between the two sects, but they admit of .being
reduced to a few leading principles, which I now pfoceed to
notice, following the order in which the different branches
of tho subject are treated of in this volume.
Tho impediments to inheritance are four in number,
according to the Hanifites, yiz„ slavery, homicide, difference
of religion, and difference of dar, or country. Of these the
^ “ Tliis has been said, in the case of tho Hanifites, on very insufficient
grounds, as appears to me for th9 reasons stated in tho notes to my
Digest, pp. 421, 425, 426. • .
” The following text of tho Koran seems to support this doctrine
“ It is ordained you when any of you is at tbo point of deatbi if he
leave any goods, ^at ho bequeath a legacy to his parents and kindred
according to what is reasoimble.” — Sale*« Translatim, vol. i. p. 31.
‘ 63 •
INTRODUCTION.
xxii
Sheeahs recognize the first; tho sccmid, also, with some
modification ; that is, they require that the homicide bo in-
tentional, in other words, murddr ; while ^;nth the Ilanifitea
it operates equally as an impediment to inheritance, though
accidental. For difference of religion, the Sheeahs substitute
infidelity ; and difference of country they reject entirely.
Exclusion from tho whole inheritance, according to the
Ilanifitea, "is founded upon and regulated by two principles.
Tho one is that a person who is related to tho deceased through
another has no interest in the succession during tho life of
that other; with tho exception of half-brothers and sisters
by the mother, who are not excluded by her. Tho other
principle is, that the nearer relative excludes the more
remote.” The former of these principles is not expressly
mentioned by the Sheeahs; but it is included without the
exception in the second, which is adopted by them (270), and
extended, so as to postpone a more remote residuary to a
nearer sharer, — an effect which is not given to it by tho
Ilanifitea.
With regard to pbrtial exclusion or thc^iminution of a share,
there is also some difference between the sects. According to
the Ilanifitea, a child or tho child of n son, how low soever,
reduces the sharSS of a husband, a wife, and a mother, from
the highest to the lowest appointed for them ; while, according
to the Sheeahs, the reduction is effected by any child, whetlier
male or female, in any stage of descent from the deceased (271).
Furth'er,<when tho deceased has left a husband or Avife, and
both parents, the share of the mother is reduced, according to
the Hanifitea, from a third of the whole estate to a third of the
remainder, in order that the mole may have double the share
of tho female; but, according to the Sheeahs, there is no
reduction of the mother’s third in these circumstances, though,
when the deceased has left a husband, the share of the father
con only bo a sixth (888).
I The shares and the persons for whom they are appointed
; being expressly mentioned ip the Koran, there is no difference
; in respect of them between the two schools. But they differ
" M. {j. L, p. 68.
INTRODUCTION.
xxiii
materially aa to the Velati ves who pe not sharers. These
are divided by""the Hanifites into rcslSuarios and distant
kindred. The rosiduarios in their own right they define as
every male in whose lino of relation to the deceased no female
enters ; “ “ and the distant kindred,” as “ all relatives Avho
ai’o neither sharers nor residuaries.” The rcsiduaries not
only take any surplus that may remain after the sharers have
been satisfied, hut also the whole estate when there is no
sharer, to the entire exclusion of the distant kindred, though
these may, in fact, bo much nearer in blood to the deceased.
This preference of the residuary is rejected with peculiar abhor-
rence by the Shceahs (400), who found their objection to it,
certainly with some appearance of reason, on two passages of
the Koran, cited below.“ Instead of the triple division of the
Ilanijites, they mix up the rights of aU the relatives together,
and thou separate them into throe classes, according to their
proximity to the deceased, each of which in its order is pre-
ferred to that Avhich follows ; so that while there is a single
individual, even a female, of a prior class, thepe is no room
for the succession of any of the others (826).
Within the classes operation is given to the doctrine of
the return by the Shceahs, nearly in the same way as by the
Ilanijites: that is, if tliero is a surplus .over* the shares 'it
'reverts to the sharers, Avith the exception of the husband or
wife, and is proportionately divided among them. According
to the Ilanijitea, this surplus is ahvays intercepted by the
residuary ; and it is only Avhen there is no residuary tliaf there
is with them any room for the doctrine of the return. When
the shares exceed the whole estate, the deficiency is distri-
buted by the Ilani/ites over all the shares, by raising the
extractor of the case, — a process which is termed the awl, or
increase. This is also rejected by the Sheeahs (397), who make
the deficiency to fall exclusively upon those amon g them
whose relationship to the deceased is on the father’s side (396).
* With regard to the c omputation of shar es, there does not
“ M. L. I., 72. . '» Ibid. 127. * •
** “ And those who are related by consangui^ty shall be deemed tlio
nearest of kin to each other preferably to strangers.” — Sale, vol i.*p. 218.
And there is a confirmation of the doctrine, vol. ii. p. 201.
XXIV
INTRODUCTION.
app ear to be any differen ce between th e scho ola. But the
rules givenTiy the Moohumituudan^law^s for the purpose are
supposed to present some difficulties to begiRnors, and a
few words in the way of explanation may not bo improper in
this place. The object of the rules is to find some number
out of which the shares may bo taken, or extracted, as it is
termed, without a fraction ; but for this purpose tho number
must be divisible by the fractions which represent the shares,
and as these are all of different denominations, it is necessary
that they should be reduced to a common denominator ; and
it is convenient, though not necessar}', that this should be
the least possible, or in other words, that the fractions should
be expressed in their lowest tcitos. The rules of the Arabian
arithmeticians for tho puiposc are I believe precisely the
same as our own.^’’ But the Moohnmmudan lawyers, instead
of referring to>the general rules, and leaving you to work out
the operation, which is sometimes very tedious, by yourself,
present yon with tho results in the lowest common denomi-
nators for every possible combination of tho shares, or tho
fractions by which they aro represented. . These denominators
are termed extractors, and they would be sufficient for aU
cases if thore^ were only a single claimant for each share.
But a share has Sometimes to be divided among a number of
claimants, and then, if the parcels allotted to each share
cannot bo divided among tho parties entitled to it without a
fraction, tho extractor must be increased by multiplying it by
tho nunlber of claimants. The resulting number, however,
may be inconveniently large, while it is desirable to keep it as
low as possible, but this can be done only when there is a
common measure of tho number of parcels comprising tho
share, and the number of the persons claiming it. When
this is the case, one of these is to be divided by the common
measure, and the extractor multiplied by the quotient. When
there are several shares in the like predicament, they are to
be treated in the same way; %nd when all have been thus
.prepared the extractor ii again to be multiplied by them all ;
• (
7 In ihe^Klioolasut-oohllisab, the same rule is given for finding
the greatest common measure <as in our ordmaiy books of arithmetic.
INTBODUOTION.
XXV
nniAaa the numbers arft equal, when a multiplication by one
of them will suffice ; or the smaller numbers are aliquot parts
of the' larger, \^en multiplication by the latter will bo
sufficient ; or whore there is a common measure of the
numbers and they are to bo reduced to their lowest terms,
and the extractor to be multiplied by the quotient. Tho
result of these operations when reduced as much as possible
by any of these methods, will still bo a number so incon-
veniently high as to occasion a great deal of trouble at least,
if not difficulty, in carrying out the farther operations for
ascertaining the actual portion of each heir in the assets of
the deceased’s estate. And this trouble will bo vastly
increased if one of the heirs should die before tho partition
of tho estate, and a further multiplication of the extractor
may be required by tho number of persons who may bo
entitled to his share.
Here an important question arises, Is all tLis multiplica-
tion and complication necessary ? or might not tho partition
be made among the heirs with equal accuracy and more
facility by always dealing with tho extractors in their original
state? I confess f think it might. Thus, to take tho
case (p. 277) of a wife, both parents and children. There
tho share of the wife is one-eighth, of oacb.«parent one-sixth,
and of the children tho remainder, and tho case presenting the
combination of on eighth with a sixth, the extractor is twenty-
four. Tho wife will have accordingly three parcels, thp
parents four each, and the children tho remaining .thirteen.
But now suppose that instead of one wife there are four, and
tho three parcels must be divided among them equally. This
cannot bo done without raising the extractor, and, being
multiplied by four, it will be increased to ninety-six. Each
wife will have now three ninety-sixths, each parent sixteen
ninety-sixths, and the children the remaining fifty-two ninety-
sixths. But it would have been just as easy to say that each
\irtfe shall have a fourth part of three parcels, and the parents
their fourth each, and tho childreii their thirteen parts as
before ; or, better still, to state tlie actual sum in money to
which each heir would be entitled in these proportions, as,
for mstance, if the whole assets were 2401., the Share of each
XXYl
INTRODXJOTION.
wife would be 11. IO 0 ., of each parent^ 401., and of the
children 1801.
#■
o
The volume which is here presented to the English
reader is intended to exhibit the doctrines of the Slieeah
sect on the most important of the subjects to which the
Moohummudan law is applied by British Courts of Justice
in India. With the exception of the last Book, it is com-
posed entirely of translations from the Shuraya-ool-Ialam,
a work of the highest authority, which has entered largely
into the Digest of Sheeah Law, compiled under the super-
intendence of Sir William Jones. The translations have been
made from the edition which was published at Calcutta by the
Asiatic Society, at the suggestion and with the aid of the
Nuwab Seyud Mohammed Hossein Khan Behader Tuhawur
Jung. Each;sabject is given without any abbreviation from
the original, except in the few instances mentioned in the
foot-notes. The last Book, which is an additional treatise
on the Law of Inheritance, is from a manuscript which has
come to my possession, as one of the expeutors of the will of
the late Lieutenant-Colonel John Baillie, the translator of tho
first and only volume that was ever published of the Digest
before mentioned^ It is very carefully copied in tho hand-
writing of the translator, and has all the appearance of being
a farther portion of the same work, and of having been finally
corrected by himself for the Press. Moreover, at page 469
of the painted volume there oceurs the following note on tho
word Patronage or Wula : “ See a full explanation of the
term, and a description of the various rights of wula, in
tho ‘Book of Inheritance,’ Vol. TV.” Corresponding with
fln'g there is such a full explanation of the terms, and
such a description of the rigSt of wula as there alluded
to in the manuscript in question. From these and other
circumstances, I was led to infer that it was a translation
of the “Book of Inheritance,’’ contained in Sir William
Jones’a. Digest. The original of the Digest I had seen,
‘many years ago, at Calcutta, when it was in the custody
of tho Court of Sudder Dowanny Adawlut ; and, by the
of Mr. Justice Maepherson^ a Judge of the High
INTBODUCTION.
XXTU.
Court, to which it has \iow been transferred, I have obtained
copies of the beginnings and endings of the different sections
of which the “ Bqpk of Inheritance ” is composed. A com-
parison of these with the mannscript has removed any doubts
which might have remained on my mind as to its being a
translation of the " Book of Inheritance ” in the original
Digest. Mr. Macpherson has also ascertained for me that
the book is composed of extracts from a commentary on tho
Mufateeh, a work called tho Kafee, and the Shuraya-ool-
Islam. Having implicit reliance on the scholarship and
accuracy of the translator, who, moreover, had the assistance
of a staff of native assistants, paid by the Government, I
have no hesitation in publishing tho work in the form of an
additional Book on Inheritance ; with the omission, however,
of the parts taken from the Shnraya, which are included in
the seventh book of this volume. I have printed it from tho
translator’s manuscript, without any alteration, except in the
correction of a few clerical errors, and with no other addition
than two or three notes, marked with the wor^ Ed. to dis-
tinguish them from notes by the translaton
It will be observed that the note already quoted from tho
first volume of the Digest of Sheeah Law refers to a fomrth
volume of the work ; and there are other notes which allude to
intermediate volumes, as if tho whole work had been com-
pleted, and were ready for publication. It was not till more
than twenty years after the death of the translator that any
of his papers came into my possession, and the only pai%s of
the work that were then found among them, in any way
connected with the matters contained in this volume, were a
chapter on connubial rights, comprising dower, partition,
rebellion, and discord, and three books on pre-emption, gifts,
and wills. The book on giftS is composed chiefly of extracts
from the Tuhreer; but the others being taken from the
Shwaya, I have freely availed myself of them in making my
o\fri translations, though adhering generally to my own lan-
guage, as more conformable to the^rest of the volume.,
I have only now to notice the abbreviations which occur *
in the foot-notes. Im. D. is for the first volume of tho
Imameeah, or Sheeah d^est, already mentioned ; P. P. M:L.
XXViii INTBODUOTION.
for the Principles and Precedents of J&oohvmmudan Law, by
the late Sir W. Macnaghten, Bart. ; D. for the Digest of
Moohummudan Law, on the siAjects to which it is usually
applied by courts of justice in India; and M. L. S. and
M. L. J. for treatises on the Moohvmmudan Law of Sale and
Inheritance; the three last being by the author of the present
volume.
A DIGfEST
OF
MOOHUMMUDAN LAW.
BOOK I.
OF NIKAII, OR MARIUAGE.
THEBE ARE THREE KINHS OP MARRIAGE ; PERMANENT,
TEMPOR.UIY, AND SERVILE.
CHAPTER I.
OF PERMANENT MARRIAGE.*
Section First.®
Form and Laws of the Contract.
•
Marriage, like other contracts, requires declaration and MarriaRe
acceptance for its constitution ; and both must be expressed tutcTby
in such a manner as to demonstrate intention, without any declaration
sort Of ambiguity.
The words appropriate to th(i declaration eive zuwivvjtoku Words ap-
and ankuhtoku, both signifyiiig I have married thee.’* * t ™declara-
‘ Nijedh al Ditim,
* A short preliminary section on tlie prayers and ceremonies to
be observed by a man before entering into a contract of marriage, a^d
also before proceeding to consummation, has been omitted, as belong-
ing to the spiritual rather than to the temporal tab^e of the law.
® More literally, the fonner, “ I have joined thee," and the latter,
“ I have united thee in wctUock." The terminating syllable ku
PARf^I. n
2
MABRIAOK.
accept-
ance.
Both must
1)C express-
ed in the I
preterite '
tense.
Use of the
word
moota.
With regard to the word muttudthku, which signifies, I
have bestowed on thee,” or ‘‘ given thee the enjoyment,”
there is some doubt of its being legally sufficient ; but the
opinion which is in favour of its legality has been gene-
rally preferred. Acceptance is expressed by saying, “ I
have accepted the inzireej,** ^ or “ I have accepted the
nik/fhy^^ ® or by any other words of the like import, or it
may bo shortened by simply saying, “ I have accepted.”
: It is necessary that the declaration and acceptance
should both bo expressed in words of the past tense. If
the imperative is empl^ed, as by the man’s saying,
“ Marry mo to her,” and the other party to the contract
should answer, “I have married thee,” it is maintained
by some of our doctors that the marriage is valid ; and
this opinion is approved.^ Even if the future were
employe4, as by the man’s saying to the woman, “ I
will take thee to wife,” and she should answer, “ I
have married thee,” the marriage would be lawful.’' But
in this cp,so it hiis been said that the man should reply,
“I have accepted.”
With regard to the word inootd,^ or enjoyment, it is
related in a tradition by Ahan ben Tof/hUh, that if thou
shoiildst say to a woman, “ I take thee to wife by way of
iiiootdy' and she should answer, “ Yes,” she would be thy
wife ; or if the guardian of a woman, or the woman herself,
should say, “ I have conferred on thee the enjoyment for
BO much,” without specifying any particular time, perma-
(thee) ill both words is the masculine pronominal affix, and botli are
supposed to be addressed to the intending Imsband by tlie fatlier or
guardian of tlic proposed wife, or other person authorized to act
for her. %
* Infinitive of zuwmijto.
® Original infinitive of anhuhto,
® Jlumin, literally and, technically, a tradition of the second
order of authenticity, or class('d next to suheeh.^ Im. D., p. 194.
^ The two last cases appear to bo rather inconsistent with the word
necessary (laboodda), in Iho first sentence ; but it will bo observed
that in both the preterite occurs in one member of the sentence.-^
See j9.,.p. 14.
® Infinitive of muttU(jito. ,
WORDS DY WHIOH MARRIAGE IS CONTRACTED.
8
nent marriage would bo’contracted. And this is evidence
that permanent marriage may be constituted by the word
tumiittooaJ* , t
It is not required that the acceptance should agree Vcrbnlcor-
verbally with the declaration. Nay, the contract would bo enco^bc-**
quite valid though the declaration should be by one of the
words before mentioned, and the acceptance by the other ; andaccept-
as, for example, by the guardian’s saying zmvwujtohiy and
the husband’s answering, ‘‘ I have accepted the nikdh,** or
by the former’s saying (inkuhtokn, and the latter’s answer-
ing, “ I have accepted the tifztceej,'' when, in cither case,
tlic marriage would be valid. If one person should say to
another, Hast thou married thy daughter to such an
one ? ” and the person addressed should answer, Yes,”
wlicreupoii the husband should reply, I have accepted,”
there would bo a valid marriage ; for “ yes ” involves a
repetition of tlio question, though it is not repeated verbally.
Upon this point, however, there is some room for doubt or
hesitation. '
Neither is it required that the declaration' should pro- Nor that
cede the acceptance, for if one should say liizmvwnjto, ration
and the guardian should answer zmmcmlokii}^ the contract should pre-
nould bo valid. acceptance.
Any deviation from the two words before mentioned No devia-
is unlawful,^^ though it were only by translating them into [j|^”appro-
some language dilicront from the Arabic, except in a case priate
of positive inability to make use of that language^ Ifiowcl^'^'
either of the parties is unable to use it, each of them may
employ his own language. And if both or one of them
be dumb, the person labouring under the defect of speech
may indicate his or her consent by signs.
Marriage can in no case T)e contracted by the words Words by
— which mur-
® A derivative from mootd. According to the IJanifites, marriage
cannot bo coniractod by this word or any of its derivatives. — 1,5.
Both the words are derivative^ from the same root ; but the
lirst seems more appropriate to the acc(^taTice, and the second to
the declaration. ^ *
“ There is a remarkable difference in tliis rcftpect ’between tlie *
two sects.—-/)., p. 15. " • .
4
MARBIAGE.
riagcisnot 66*?/a (sale), heha (gift), tumlcck (transfer), or ijaruh
contracted,
The laws of the contract are comprehended in the
following cases : —
iSo regard First. In marriage no regard whatever is to ho paid
to tho^ Avords of a hoy,^® whether in expressing declaration
words of a or acceptance; nor to those of an insane person. With
insane per- regard to marriage contracted by one so drunk as to be
®on. incapable of discernment, there is some difference of
opinion ; but according to that which is most agreeable
to traditional authority, it is not valid, even though sub-
sequently confirmed by the person when sober.^* There
is one tradition, however, according to Avhich, if a woman
in a state of intoxication should contract herself in
marriage, and aftenvards, on becoming sober, should
declare her consent to the contract, or if, being enjoyed
while intoxicated, she should subsequently, on becoming
sober, acknowledge the man to be her husband, there
would, in either case, be a concluded marriage.
A guar- Second. A ‘guardian is not required to the marriage
required to of ^ vtisheedahj^^ or discreet female ; nor is the presence
a discreet of Avitnesses necessary in any matter regarding marriage.^®
witnesses And though a marriage Avere contracted by the spouses
to any themselves or their guardians in private, it Avould still bo
, marriage. ” *
‘ All these words, except the last, are suflicient according to the
other sect. — Z)., p. 15,
' Suhee, that is, one under puberty. According to the other.
sect, marriage contracted by a boy of understanding is valid, though
inoperative without the consent of his guardian. — (D., p. 5.) But,
according to the Shceahs, “ all acts wliich may bo performed before
maturity and discretion are considered to bo null and void." — {fm.
R, p. 308.)
** “ Extreme intoxication, so as to remove tlic power of discern-
ment,” is a ground of nullity in sale. — Im. D., p. 11.
From roosM. “ Maturity is not sufficient without discretion
to Remove the inhibition imposed on infants by law.” — Im. Z)., p. 310.
« Discretion signifies the just and proper management of one’s pro-
< Pprty.” — Ibul j
lt.is essential to a valid marriage, according to Uie other sect.
, — Z)., p. 6.
LAWS OF MARRIAGE.
5
lawful. Nor would even a positive injunction to secresy
invalidate it.
Third. Wlicn it person, after making a declaration, has
become insane or fainted away, the effect of the declaration
is annulled ; and if it were subsequently accepted, the
acceptance would be of no avail. The result would be
the same if the acceptance were first expressed, and
failure of understanding then taking place on tho part ceptnnee.
of the acceptor, tho guardian, or party on tho other side,
should subsequently intciqiose his declaration, for in that
case the declaration would bo equally unavailing, as in a
case of sale.
Fourth, An option " may bo stipulated for with regard An opti^
to the dower especially, that is, it cannot be extended to Mrvciras*^
tho marriage itself;*" and an option so restricted is quite
valid, without in anywise vitiating the contract. •
Fifth. Wien a man has declared himself to be the Effect of
husband of a woman, and she has assented to the truth of
the statement, or a woman has declared herself to bo the in «>nsti-
wife of a man, and ho has acquiesced in thc’assertion, they
are to be adjudged as ostensibly married, and as having
mutual rights of inheritance. If one of them should make
such a declaration, judgment for all the effects of tho con-
tract is to be given against him or her only, to the exclu-
sion of tho other.
Sixth. It is required as a condition in marriage th(ft In a con-
tlie wife be distinguished from alb others by distihctly
.pointing her out, or byname and description.’" So that the wife
if a person should man*y a man to one of his daughters,
without anything else to indicate her, the maniage would indicated,
bo void. ,
Seventh. If a man should claim a woman as his ■wife, Preference
of proof in
An option is a power of cancellation, which may bo reserved
to eitlier party in a contract of salt by express stipulation.— Sec
Im. i)., p. 30, and i/. L, S.y p. C3.
Hoe post, p. 77.
This cannot be less necessary wiUi respeet to tho liiisbniid,
though the wife only is mentioned, ns she is seldom present at the.
^ time of contract. • . •
6
MABBUQE.
I .
Mntcnd- and her sister should, on the other hand, claim him as
b^a mm* husband, and both the parties offer proof in support
man^'his respective claims,®® then if the man had consum-
^'nfc, and mated mth the female claimant, the preference is to be
by her sis- given to her proof, for her claim is manifestly corroborated
ter to mm
ns lierhns- by his own act. And, in like manner, her proof should bo
band. preferred if prior in date to that tendered by the man.
Ilut in the absence of both these circumstances in favour
of her proof, preference is to be given to that of the
husband.®^
of^laTO Eighth. When a slave who has married a bondwoman
to a bond, has purchased his wife, with his master’s permission, and
account, the marriage remains as before, being quite
liy her be- unaffected by the purchase. Whereas, if the purchase
property^** were on his own account, or if he subsequently acquires
by any other means the right to his wife, and we can
properly cull him her proprietor, the maniago is dissolved ;
but if we cannot make this supposition (ho being a slave)
the maniage .remains good as before. If the slave is
partially emancipated, and then purchases his wife, the
maniago between them is in like manner dissolved,
whether the purchase were made with his own money, or
with money the joint property of himself and his master.
Section Second.
Persons icho have Pmcer to enter into the
Contract.^
Who have No person has any authority to contract another in
maniago except a father, a paternal grandfather in any
others. „
The two chiims cannot be true, as a man cannot lawfully bo
the liusband of two sisters at the same time. — Sec p. 23.
On the subject of preference of proof, see Digest, B. xii.
cap. vi. , *
** A wlceali, pliu’al of ivulee, the word translated guardian a little
abdvc (p. 4), but here taken in a more comiirchensivc sense, as
including all persons possessed of authority. Accordingly, though
tile section relates chiefly to guardians, cases relating to the
marriage of slaves and the appoinUpent of agents will be found
luider it. ' ‘ i <
GUARDUNS IN MABBIAGK.
7
degree of ascent, a master, an executor, or a judge.
According to ono tradition, it is a necessary condition of
the grandfather’s authority thfit the father should he alive.
But the tradition is not free from doubt as being weakly
authenticated, and it would seem that the father’s existence
is not necessary to the exercise of the grandfather’s
authority.
The authority of a father and a paternal grandfather The father
over a young girP“ is clearly established, even though she
should have lost her virginity ; and, according to the more authority
approved of two traditions, she has no option after attaining
to puberty. In like manner, if a father and grandfather child,
should contract a boy “^ in marriage, the contract would be
binding on him, and he would have no option after attain- female;
iiig to puberty and discretion, ‘‘ according to the most
prevalent doctrine. But whether they have the same
power over a virgin who is discreet, is a question on which
there are several traditions. According to the most
generally approved of these, their authority is at an end,
and she is quite competent to contract hCrself, either by
a permanent or a temporary marriage ; and if either of
them should take upon himself to cntelr into the contract
for her, it would not bo cftcctual without her assent. Some
of our masters, however, allow her to contract a permanent
but not a temporary marriage ; and others tho reverse ;
while some again deny her any power as to either ; and
there is still another tradition that points to a partnorsliip
in the authority, so that it would not be lawful for the
guardians to act separately from her in the contract. But
if her guardians should refuse to marry her to an equal,
when desired by her to do so, there is no doubt that she
may contract herself, even against the will of both. And
tliey have no power whatever over a woman who is a
tlinjjyibah,^^ that is, not a virgin, and has attained to puberty
and discretion, nor over an adult male. Their power, how- not an
^ . adult,
Sugheerah (fcm.) ViXiAsuglieer (masc.^ literally, “ little onc.”*Tho
words always mean persons under puberty. ^
^ Rooshdj SCO anky p. 4, note.'®
“ Usually pronounced Siyyebah in India.
unless the
person is
insane.
A master
imy con-
tract his
slave.
Authority
of n judge,
how re-
stricted ;
of an ex-
ecutor.
A person
inhibited
for protli-
gality, can-
not con-
tract him-
self,
without
• permission
of the
judge.
Excep-
tiuns.
A contract
entered
into with-
out autho-
rity, is in
suspense .
till duly
confirmed.
8‘ MABBUOE.
ever, is fully established with respect to both of those
persons if insane, and neither of them has any option
after restoration to reason. * ,
A master may contract his female slave in marriage,
whether she bo young or full-gi’own,** sane or insane, and
she has no option in the matter. The rule is the same
also in the case of a male slave.
The judge has no power in marriage over any ono Avho
is not adult, nor over an adult who has discretion. But
his authority is fully established with respect to a person
who has attained to puberty without discretion, or one on
whom insanity has supervened, when marriage is for his
benefit.
An executor has no authority in marriage, according to
the most approved tradition, even if it were expressly given
to him by his testator. But an executor may contract a
person who though arrived at puberty is deficient in under-
standing, when there is any necessity for contracting him
in marriage.
A person who has been inhibited for prodigality cannot
lawfully marry, except in an extreme case ; and if he
should do so the maniago would be invalid. But if
desperately bent on mamage, the judge may lawfully
grant him pennission to marry, either specifying a par-
ticular woman, or leaving the i)ennission general : and if
ho should be impatient, and contract himself before obtain-
ing jibe permission, being in the condition before men-
tioned, the marriage would be valid ; but if the dower be
more than what is proper for a person of the same con-
dition as the vvoman, it is void as to the excess.
When a stranger has taken upon him to contract a
person in marriage, the cohtract is in suspense for the
permission of the party to whom the right of contract
belongs. Some, however, have said that the contract is
void ; but the first opiuion«is more agreeable to traditional
authority. ,
•** Kttbeer (inas(f.) and kubeerah (fem.), alwaj’S used in opposition
U) tttgheer mA »ughe^rali. ,
GUABDUNS IN MABBUGE. »
Matters conneded with the Preceding.
First. Wlien an adult and discreet female has given Agent of
a general appointment to arf agent to contract her
marriage, he cannot marry her to himself without her trwt^crto
special permission. And though she should appoint
agent expressly to marry her to himself, it has been said,
on the authority of one report, that such an appointment ^
would not bo valid. The more approved doctrine, however,
is in favour of its legality. And if a woman’s grandfather
sliould marry her to the son of another son than her own
father, the marriage would be lawful.
Second. Whether a woman who is contracted in mar- Woman
riago by her guardian for less than her proper dower can
object to the contract is a question on which there is some than her
diflcrence of opinion, but, according to tho most authentic
doctrine, she has the power to do so. object
Third. Full regard is to bo had in tho contract of Discreet
marriage to tho words of a female who is of mature ago comment
and discreet, so that she is quite competent to eontract to con-
hersclf, or to bo tho agqpt of another in giving expression
cither to the declaration or the acceptance.
Fourth, The contract of marriage may, according to A contract
the most approved doctrine, remain in suspense, as already riago may
mentioned, for tho sanction of the person having authority remain in
ill the matter ; and if a young girl is contracted in raarriago Sli^uiy
by any other person than her father, or paternal grand- «“”flrmc(l.
father, whether the person bo nearly or remotely related to
her, tho contract cannot pass or bo operative unless sub-
sequently allowed or approved by herself, even though tho
person were her brother or paternal uncle. In tho case of Assent of
a virgin this permission or assent may be inferred from
her silence when tho matter is propounded to her ; but a inferred
woman who is not a virgin must bo put to tho trouble of
giving expression by actual speech to her permission or
assent. If the person contracted be a female slave, the
contract is in suspense until legalized 4)y her master ; (md
if not a slave, but under puberty, and her father or grand- *
father allows the contract entered into by h8r, tho maraiage
is valid. . .
10
MABBIAOE.
An infidel Fifth. Whon the gnardian is an infidel” he has no
L. no aa> authority over his ward, and if the father be an infidel the
thority. authority is established in ^he grandfather alone. So also
when the father is insane or falls into a state of temporary
stupor. But on the removal of the impediment his
authority revives. If the father should select one husband,
and the paternal grand&ther another, the husband whose
contract was first in date is to be preferred, and the contract
of the other is void. But if both contracts should take
place simultaneously, the contract of the grandfather is
established in preference to that of the father.
Option of Sixth. When the guardian of a female has married
puberty;!!! i • • i xi. •
what COSOS her to a person who is insane or an eunuch the marriage
allowed. valid, but she has an option on attaining to puberty.
So also when the guardian of a boy has married him to a
female, having one of the defects which are a sufiicient
cause for the cancellation of marriage, ho has in like
manner an option on attaining to puberty. But if the
guardian of a girl should marry her to a slave, she would
have no option on aiTiviug at puberty. And the law is the
same with regard to a boy married in the like circumstances,
though some have denied its application in his case.
.Seventh. The marriage of a female slave is not lawful
without except with the permission of her owner, though the owner
be a woman, and whether the marriage be permanent or
master not temporary. Some, however, have maintained that the slave
ma^ marry heraelf by a temporary contract when the owner
is a woman. But the first opinion is more agreeable to thO'
general principles of law.
Caaooftwo Eighth. When the fathers of two young childi-en have
ina^^d contracted them to each other in marriage, the contract is
f binding on them both ; and if one of them should happen
themT^n'g fo die, the other would be entitled to share in the deceased’s
before pu- inheritance. If any other than the fathers of. the
children should contract* them in man-iage, and one of
^ Xqfir. The term is ajiplicd to all who ore not of the Mussul-
man religion.
“ “ Or grandfathers • would scorn to bo implied. See ante, p. )). ^
OUABDUNS IN MABBIAOE.
11
them should happen to’die before aiTiving at puberty, the
contract would be void, and b^th dower and the right of
inheritance would fail. If, again, one of them should
attain to puberty and bo willing to abide by the contract,
it would be binding on the side of that person ; and if ho
or she should subsequently die, the share of the other in
the deceased’s estate must be reserved. If such other on
attaining to puberty should allow the inarriage, he or she
must then be sworn that the marriage has not been allowed
from gi’ced of the inheritance, and admitted to the reserved
portion if the oath bo taken ; while if tho person who has
not allowed the contract should happen to die, the contract
would be void, and tho party w'ould have no right to share
in tho estate of the deceased.
Ninth. When the owner of a slave has given him ^
pci-mission to many, the contract entered into by him is fully con-
valid ; but if the permission be given in general terms, it
is restricted in respect of claim to the proper dower of tho riage with
woman who is tho subject of tho contract. Tho excess (5“
over the proper dower* is nevertheless obligatory on the mission,
slave himself, and he may be sold for it, if he should ever
obtain his liberty. To the extent of the proper dower, tho
owner is liable; and though it has been said that the
proper dower attaches only to tho gains or acquisitions of
the slave, the first opinion is more conformable to tradi-
tional authority. The same doctrine is true ivith regard to
tho maintenance of the slave’s wife, for which his miftitcr '
ns also liable.
Slave par-
Tenth. A partially emancipated, slave cannot be com- ti'aliy free
polled by his owner to enter into man-iage. to ma^'
Eleventh. When the ownqj’ of a female slave is him- Power to
self subject to the authority of another, the right to give
her in marriage belongs to his superior ; and when tho ginvo wlicn
superior has given her in marriage, the contract is binding
and cannot be cancelled by tho owner, after the removal of tliority bc-
the authority to which ho was subject. * •
It is becoming and proper for a woman^beforo entering a woman «
into marriage to ask tho permission of her father, whether “P"
, sue be a vugm or not, aim, when she«has neither qithcr nor agent to .
12
MAIUtUGE.
coniTOct grandfather, to appoint her hrothei* to act as hor agent in
mu^ge. matters, giving her confidence to the eldest when she
has more than one brother. If each of an elder and
younger brother should select a husband for her, she
should adopt the choice of the elder; but if both were
> appointed her agents to contract her in marriage, and they
should contract her to two different husbands, the contract
first entered into would take effect. Yet if the second
marriage bo consummated, and she becomes pregnant in
consequence, the paternity of the child is to be ascribed to
the man whoso marriage has thus been consummated, and
he is liable for her dower, though the woman herself must
return to the husband with whom the first contract was
made. If, again, the conti'acts were entered into simul-
taneously, some of our doctors have maintained that a
preference should bo given to the contract of the elder
brother ; but there seems no snfScient ground for this
opinion. While, if she had never given authority to either
of them, she may approve whichever of the contracts she
pleases, though it is considered better that she should give
the preference to that entered into for her by the elder
brother. If, however, before expressly allowing either of
the contracts, she consummated with one of the husbands,
the contract with him is binding on her.
A mother A mother has no power in man-iage over her child.
”°to Nevertheless, if she should enter into such a contract for
co^ct her, son, and he is content to abide by it, the contract is
herchildin upon lum ; but if he is averse, she is responsible
for the dower. On this point, however, there is some room
for doubt, and the question of her liability is sometimes
held to depend on her having sought for an appointment
of agency from her son.
The word When a stranger has contracted a woman in marriage,
whe^P^ and the husband says to her, “ He contracted thee with-
ferred to out thy consent,” her werd and oath are to bo preferred,
bond’s in o bqcause she is seeking to maintain the conti-act.
dispi&te as to her consent
c to a contract.
UMLAWUIj mabbiaoes.
13
Section T^pibb.
The Games of Prohibition in Marriage.
These are six in number.
Fibst Cause op Peohibition.
Ntisub or Consanguinity.
By nmtib seven different classes of women are pro- Women
hibited to a man. The first class comprises his mother,
and grandmothers how high soever, and whether paternal by reason
or maternal. The second class comprises his daughters
and their daughters how low soever, and also the daughters guinity.
of his sous to the lowest degree of descent. The third
class comprises his sisters, whether by the same father and
mother, or by the same father only, or the same mother
only. The fourth class comprises the daughters of these,
and the daughters of their children. The fifth class com-
prises a man’s paternal aunts, whether the sisters of his
father by both his pareBts, or by the same filther only, or
the same mother only ; and in like manner the sisters of
his grandfathers how high soever. The sixth class com-
prises his maternal aunts, whether sisters of his mother
by both her parents, or only by the same father or the
same mother ; and, in like manner, the maternal aunts of
his father and mother how remote soever in ascent. And
the seventh class comprehends the daughters of a man’s
brother, whether he be a brother by both parents, or only
by the same father, or by the same mother, and whether
the daughter bo the immediate child of his brother, or the
daughter of his daughter or of his son, and their daughters
how low soever
Among men the like classes are equally prohibited to a Like clas-
woman. So that her father, how high soever, her brother
and his son, her sister’s son, her*patornal uncle, how high to a
The daughters of sisters are omitted, but it would seem from
the next sentonee, where a sister's sou is among the like classes pro-
^hibited to a woman, tliat tliis is a mere inadyertence.
14
MABBIAGE.
Nusub es-
tablished
by mar-
riage, or
the sem-
blance of
soever, and her maternal nncle* in like manner, are all
unlaMrful to her.
Nmtib, or consanguinity, is esljjiblishcd by a valid
marriage,'"’ or the semblance of it ; and it is not established
by sina or illicit intercourse. Hence, if a man should
have such intercourse with a woman, and a child be gene-
Cosc of a
child borne
but not rated of his seed, it is not related to him in law. Still,
according to the most approved doctrine, the child is pro-
hibited both to him and the woman, because it is in reality
the product of his seed, and is, accordingly, termed his
child in common parlance.
If a man has repudiated his wife, and she is subse-
by a repu-" qiiently cnjoycd by another under a semblance of right,
pregnant, and is delivered of a child at less than
another six months from the time of the second intercourse, and
than the months from her last connection with the repu-
under a diator, tho child is to be ascribed to the latter; but if,
acmblanco when there is less than six months from the intercourse
of right.
with tho second husband, there is more than tho longest
period of gestation from the last intercourse with the repu-
diator, tho child is not to bo ascribed to either; and if
, there is a possibility of tho child’s being tho fruit of either
intercourse the case is to be resolved by casting lots, sub-
ject, however, to some doiibt whether it be not more agi'oe-
ablc to the general principles of law to affiliate tho child to
tho second of the two parties. However the numh or
Tcogpanguinity may be determined, tho law of the milk, or
tho rules by which the prohibition of fosterage is regulated,
will follow it.
Auttdi of When a man denies the child of his wife, and takes tho
off^by ’to imprecation, its mmih is cut off from the master of
from the the bed, or husband of itu mother, and the milk in this
its moftcr^ case, as well as in the former, follows the numh. But if
he should afterwards acknowledge the child its numb is
restored, though he can lyive no title to share in the child’s
inheritance.
Of any of the kinds before mentioned.
TJNIiAWVL MASBIAOES.
16
Second Cause of Pbohibition.
* Fosterage.
This cause requires the consideration of its conditions Conditions
and effects.
The first condition is that the milk must proceed from i. The milk
marriage, “ for it does not occasion prohibition when it has
its source in sim or illicit intercourse.'® With regard to marriage,
a semhlahlc marriage there is some difference of opinion ;
hut it is most agreeable to the general principles of law to
place marriages of that kind on the same footing as valid
maniages. If a man should repudiate his wife when in .
milk, and she should then suckle a child, illegality would
ho incurred, in the same way as if he were still her
husband. And the result would he the same though she
should he married to and become pregnant by a second
husband. But if the milk be once cut off or cease, and
then return at a time when it may possibly belong to
the second husband, it will bo ascribed to him rather than
to tlio first. And if itr continue without intermission up
to the birth of a child hy the second husband, the milk
before delivery should be ascribed to the first husband,
and that after delivery to the second.
Tlio second condition has reference to the quantity of 2. The in-
thc milk that is required to occasion prohibition ; and it
must be such as gives increase to the flesh and strength to on the same
the bones.'*'* No effect, therefore, is allowed to anything less
than ten acts of suckling, except according to one report beroftimes
which is not well authenticated. Whether even ten be^?"jy®““
sufficient to occasion prohibition is a question on which
there are two distinct traditions, but, according to that
which is most valid or best supported, ten are not sufficient.
There is no doubt, however, that when the acts of suckling
111 its most comprehensive sensor.
This is contrary to the Hanifite doctrinlll. />., p. 105. •
“ Whatever be the quantity, it occasions prohibition accord-
ing to the other sect, provided that it reaches the child’s stomach.
IK p. 193.
16
MABBIiiaE.
3. All the
acts cf
, suckling
amount to fifteen, or are continued for a day and a night,
illegality is induced. But they are restricted by three con-
ditions. Each act must be complete in itself. They must
all bo consecutive, and direct from the breast. In deter-
mining the quantity of each, regard must be had to what
is customary. When it is said that the acts of suckling
must be consecutive, what is meant is that only one
woman should be engaged in making up the requisite
number ; for if some of the acts are by one woman, and
another woman then intervenes before the completion of
the fifteen, all the first go for nothing, or if several women
are engaged in nursing the child, prohibition is not in-
curred till one of them has completed the full number of
fifteen in succession. So that the master of the milk,
when there has been a change of nurses, docs not become
the foster-father, nor his father the foster-grandfather, nor
the nurse herself the foster-mother of the child. Accord-
ing to the prevalent opinion, it is necessary that the child
should be nursed direct from the breast.’* If, then, the
milk is poured into the child’s tljroat, or made to reach
its stomach by means of a clyster, or the like, the prohi-
bition of fosterage is not incurred. So, also, if it were
made into cheese, and the cheese were eaten, there would
be no prohibition. It is farther necessary that the milk
should be in its natural state; for if another liquid is
put into the child’s month just before it is suckled, and
fhe.milk is thus so much diluted as to bo no longer
deserving of the name, there is no prohibition. And if
the child is allowed to suck the breast of a corpse, or is
partially suckled by a woman while alive, and docs not
complete the full numl)er till she is dead, prohibition is
not incurred ; for, by death 'she has passed from the region
or cognisance of the laws, and becomes, in that respect,
like one of the lower animals. On this point, however,
there is some difference of opinion.
, The third conditio^ is that the suckling of the infant
should take place within two years from its bu-th, by reason
This is not reguired by the Jlanifitcs. D., p. 100.
UNLAWFUL MABBUGES.
17
of what has been said by him on whom and bis descendants must be
bo blessing.®* There is no fosterage after weaning.”
According to the most valid opihion, this has no reference the child’s
to the child of the nurse, so that if her own child bo past
the ago of ten years, and she then suckles an infant who is
under that age, prohibition is incurred. But if a child is
Buckled the full number of times except one, and then
completes its two years, after which it is again suckled to
make up the full number, there is no prohibition. So,
also, there is no prohibition if the two years should expire
without any attempt to complete the number by adding the
last. But the prohibition is incurred whenever the full
number is completed within the two years.
The foui-th condition is that the milk should arise from 4.Thcmilk
intercourse with one male ; and if a woman should suckle ^o**inan.°^
a hundred children on milk caused by the same man, they
would all bo unlawful to her. So, also, if one man were
to marry ten women, and each of them should give suck to
one or more children, none of them could lawfully inter-
many ^vith any of the others of them. But iJ one woman
should suckle two children on milk caused by different
men, the children would not be unlawful to each other.
There is a tradition the other way upon this point, but it
is now rejected as unauthentic. There is no doubt, how-
ever, that the woman’s own children by mmib, or natural
descent, are unlawful to any who may have been nursed
by her. , *
In conclusion on this head, the woman selected for a Qualiiira
nurse should bo a person of understanding and of the
Mussulman faith, chaste and pure ; and an infidel should
by no means bo taken for such a purpose, except in a case
of great necessity, when a zimme^ah, or infidel subject may
be employed. But she should be restrained from drinking
wine and eating pork ; and it is accounted abominable to
deliver the child to her to be nursed at her own homo. The
abomination is aggravated when the woman employed tq
nurse a child is a Mujooseeah, or fire-worshipper ; and it is
* Th« Prophet.
PABT
18
HAItBIAGE.
Effects of
fosterage.
The suck-
ling be-
comes the
child of
its foster-
parents ;
also abominable to employ a woman for that purpose whose
child has been the fruit of zina, or unlawful intercourse.
As regards the effects of fosterage; several cases present
themselves for consideration.
First. When a prohibiting fosterage has taken place,
the prohibition spreads from the nurse and her husband to
the child whom she has suckled, and from it back to them
both; so that the nurse becomes its mother, tho nurse’s
husband its father, their parents its grandparents, their
children its brothers and sisters, and their brothers and
sisters its paternal and maternal uncles and aunts.
Ubited*!^ (Second. Every one in tho relation of child to tho
cveiy child husband, either by natural descent or by fosterage, is pro-
of theirs. hibited to tho foster-child; and so, also, every one in the
relation of child to tho foster-mother by natural descent,
how low soever, is prohibited to the foster-child, but those
so related to tho foster-mother only by fosterage are not
prohibited to it.
Third. The natural father of a child that has been
suckled carihot intermarry with any of the children by
aS^lrohi* descent or by fosterage of its foster-father, nor with
hited'to the any of tho children by natural descent of his wife — the
ita fetor”* foster-mother — for they have become like his own children,
parents. Whether his other children who have not been suckled on
this milk can intermai'ry with the children of the foster-
mother or her husband, is a question that has been
answered in the negative. But it seems more agreeable to
the principles of law to say that such a marriage would be
lawful. And if a woman should suckle a son of ono family
and a daughter of another, the brothers and sisters of one ’
of tho children so suckled by her may lawfully intermarry
with the brothers and sisters of the other of them, for there
is neither consanguinity nor fosterage between them.
Fourth. A prohibiting fosterage not only forbids
of fetor- beforehand the intermftrriage of parties between whom it
lexists, but also cancels an existing marriage to which it
y^ere an attaches. Thus, if a man should marry an infant at the
isi^iLi' breast, and it is subsequently suckled by his mother,
by a reia- grantoother, or sjster, or by. the wife of his father or
The natu-
ral father
of the
UNLAWFUL MABEUOES.
19
brother when the author of her milk, the marriage is tire of tho
vitiated. If tho infant has taken the teat without the •,
knowledge of tho nurse it has no right to dower, because
tho maniago on which tho right was founded has bocomo
void; but if tho nurse’ has acted voluntarily in the matter,
it is maintained by some of our doctors that tho infant is
entitled to half tho dower, because tho marriage has been
cancelled before consummation, and her right docs not
abate, because tho cancellation is for a cause which has not
proceeded from herself ; w'hile tho husband has a right of
recourse against tho nurse for whatever he may pay on that
accoiuiLt, if sho actually intended to vitiate tho marriage.
On all this, however, there is a difference of opinion arising
from a doubt whether tho usufruct of a woman’s person be
a fit subject for responsibility.
If a person has two wives, one adult and tho other an ^
infant at tho breast, and tho infant is suckled by the adult ig "nXled
wife, they are both rendered perpetually unlawful to him if
ho had consummated with tho adult wife ; but if not, tho ’
adult wife alone is prohibited to him. Inthofoitnercasosho
is entitled to her full dower, but to no part of it in tho latter,
because tho marriage has been cancelled by her own act ;
but the infant’s right to dower is unimpaired in both cases,
because her maniago is cancelled by tho conjunction,*" and
for a cause which cannot be ascribed to her. Some of our
doctors, however, have maintained that tho husband has a
right of recourse against the full-grown wife, by whoso act
tbo cancellation of tho marriage and his consequent liability
have been induced.
” Fifth. When a man has married his infant son to or one of
tho infant daughter of his brother, and one of the children
is then suckled by their common grandmother, tho marriage suckled by
is cancelled, because the child which has been suckled, if a mon^M-
malo, becomes the paternal or maternal uncle t)f his wife, mother ;
and, if a female, the paternal or* maternal aunt of her
husband. • • •
Sixth. When a man has a female slave whom he has®*',’’y«;»’
enjoyed
3(i
Of two wonaon who cannot lawfully bo co- wives. See post, p. 21.
Somg alteration has been made in tho arrangement of tho cases.
37
20
MABHUGE.
slave of her enjoyed, and his infant wife is suckled by her, they are
husband: rendered unlawful to, him, and the right of the in&nt
to dower is established. In this catse, however, the man
has no right of recourse against the slave, because a master
can have no claim to dny property founded on the respon-
sibility of his slave. If, indeed, the woman had been free,
and were enjoyed under a contract of marriage, he would
have a right of recourse against her ; and oven in the case
before us the claim attaches in a manner to her person.
On this point, however, I have some doubt ; but if we
can say that he has in any case a right of recourse against
her for the dower, wo may then pronounce for the ^ale of
the slave on account of it; that is, she may be sold if she
should over obtain her liberty.
or by a Seventh. If a man should divorce his full grown wife,
he should then ” suckle his infant wife, both would
divorced, bocomo unlawful to him.
Further il- Eighth. When a grown woman has married a little
marriage has been cancelled cither for a
troapective personal defect or because the woman, being a slave, has
fwtera^. emancipated, or for any other cause, and the woman
has then married another man, and suckled tho infant on
milk caused by him, she is rendered unlawful to her hus-
band, because she was the wife of his son, and to the infant
because she has become the wife of his father.
Continued. Ninth. T£ a man has an infant wife and two adult
wives, and the infant is first suckled by one of the latter
and then by tho other, tho infant and the adult wife by
whom it was first suckled are both rendered unlawful to
tho husband. But not so the second wife, for at tho time'
of her suclding the infant it had already become his
daughter, and consequently ceased to be his wife. It is
maintained by some that the second wife is also rendered
unlawful to him, because she has become the mother of
one who was his wife ; bud this opinion is to be preferred.
. ?n these cases thfi marriages are cancelled by the establish-
ment of an unlawful conjunction,'** and the relationship
^ That is, the author of the Shuraya.
• ' ** See p. 81 .
* See ante, p. 1 (.
UNLAWFUL MABEIAUES.
21
wMch renders the conjunction nnlawfdl is induced by tho
acts of suckling in tho manner supposed.
Tenth. When a ’man has said, “ This is my sister,” Meet of a
or “ my daughter, by fosterage,” in such a manner as to
make the declaration binding upon him, and it has been fosterago
made before any contract mth tho person referred to,
judgment must be given against him in any suit for annul-
ling the contract, as ho has apparently rendered her unlawful
to him. If, again, the declaration is made after a contract,
and it is suppoi'ted by proof of the fact, judgment is also
to bo given in conformity with tho proof, and the woman
has no right to her specified dower if tho declaration has
been made before coition, but otherwise she is entitled to
tho amount specified. If there is a failure of proof and
tho woman denies the allegation, the man is liable for tho
full dower after consummation, and to the half of it if
consummation has not taken place.
When a woman has made a similar declaration before a By n
contract, judgment is to bo given against herself on tho
ground of her acknowledgment. But if the declaration is
made after a contract, and a claim is founded upon it by
the w'oman, tho claim cannot be admitted unless supported
by proof.
Third Cause op Prohibition.
Affinity.
This is established by valid or lawful coition, and seem- ‘Affinity
ingly also by zina or illicit intercourse, and by intercourse
ituder a semblance of right, as also by seeing and touching, riago.
, But those points will bo adverted to hereafter. Meanwhile,
with respect to a valid marriage : when a man has had Followed
connubial intercourse with a woman, either by virtue of a
contract or a right of property, he is rendered unlawful to course,
the mother how high soever of the enjoyed woman, and also
to her daughter in any stage of de;pcont, and whether bom
previously or subsequently to the intercourse, and whether
living under his protection or not. Tn like manner the
enjoyed woman is rendered unlawful to tho father how high ,
soever of the man who has had intercourse with her, and to
his sons in every stage of doscent,by a perpetual prohibition.
22
MABBUOE.
Effect of a If there has only been a contract of marriago without
the mfo is rendered unlawful to her husband’s
ed*lf”con' ber* daughter is not un-
nnbM in-' lawful in herself to the husband, and only so in conjnnc-
torconrse, tion with her mother ; so that if he should separate himself
from the mother, ho may lawfully marry the daughter.
Whether a mother is rendered unlawful to a man by a
mere contract with her daughter without coition, is a
question on which there are two different traditions.
According to the more authentic of these she is rendered
to him. But the female slave of a father is not
property” prohibited to his son by the more fact of her being tho
Mmoeffee ” pi^operty ; nor is the slave of tho son prohibited
’ to tho father for tho like cause alone. But if either of
them should have sexual intercourse with his slave, she
would then become unlawful to the other.
A father or It is not lawful for either a father or a son to have
kwMly connection with tho slave of tho other, except under a
have con- contract of marriage, or by virtue of some right of property,
with the True, that a'father may value tho slave of bis infant son,
c^r^hcr lawfully have connection with her by virtue of the
except by ’ right SO acquired ; but if either a father or a son should
virtue of ij^yo sexual intercourse Avith the slave of tho other, without
marriage. ^ semblance of right, ho would be a zmee or forni-
cator, though the son only, and not the father, would bo
, liable to the Imdd or punishment specially appointed for
the offence ; and a semblance of right would also exempt
the son from its infliction. If the slave of tho father shonl(l
become pregnant by tho son under a semblance of right,
the child would be emancipated without any liability for its
value ; but if tho slave of , the son should become pregnant
by tho father, tho child would not bo emancipated, though
tho father would bo bound to ransom it, unless it were a
female. If a father should have connection avith the wife
of his son under a sefliblanco of right, she would not
tiiereby bo rendered unlawful to the son, though some have
maintained the contrary, as she had in a manner become
'the wife of the father ; but tho father would be liable for
her doyrer. If the .son should* return to his wife, and it
imiiAWUIi UABBIAOES.
23
can bo said that coition under a semblance of right induces
prohibition, he would be liable for two dowers ; but if that
cannot bo said with propriety, is is really tho case,^ then
sho can have no right to any dower except tho first, or that
originally assigned to her on the marriage.
Among tho consequences of affinity is tho prohibition Women
of a wife’s sister in conjunction with the wife, or of a
wife’s nieco in conjunction with her without her permis-
sion. With such permission the conjunction is quite lawful, the same
Tho paternal or maternal aunt of a wife may be taken in
conjunction with her, oven against the wife’s will. But if
a man should marry his wife’s niece, whether the daughter
of her brother or sister, without tho wife’s permission,
tho contract would be void. Some of our doctors are of
opinion that in such a case tho mfo would have an option,
and might either allow tho second maniago, or cancel it
without tho cancellation being a divorce. But the first
opinion, according to which the contract is actually void, is
tho most valid.
With regard to zina or fornication, if it bo super- of
venient, the prohibition of affinity is not incurred thereby.
Thus, if a man should marry a wife and then have illicit affinity,
intercourse with her mother or daughter, or be guilty of an
unnatural offence with her father or son, or should commit
fornication with the enjoyed slave of his father or his son,
in none of these cases would tho act have a retrospective
effect in rendering the wife or slave unlawful to her bjis-'
band or master. But if illicit intercourse should occur
before a contract, then, according to tho common and
approved doctrine, tho daughter of a paternal or maternal
aunt would bo rendered unlawful to the man who had com-
mitted fornication vrith their mothers.^’’ Whether illicit
intercourse in other cases previous to a contract would
occasion the prohibition of affinity, in tho same way as a
valid or legal intercourse, is a question in which there are
Seoy>o»i, p. 24. * ’
** That is, hia cousia, whom ho might otherwise liavo legally
married, would be prohibited to him by his incestaous intercoursd
with his aunt. •
24
MABBUOE.
two traditions, — according to one of which, and that the
most patent or generally received, it has that effect, but
according to the other it has not. •
EflPcctof With regard, again, to coition under a semblance of
right, the Sheikh , on whom be the mercy of God, puts it on
seinblnnco the same footing, in this respect, as a valid marriage. But
ofnght jg ^ difference of opinion upon this point, and,
according to that which is best supported by traditional
authority, the prohibition of affinity is not incurred by it,
though the nmuh, or affiliation of any child that may be
the fruit of it, is established.
KiTcctof As to sight and touch, whatever is lawful to other
touch persons than a husband, or the owner of a female slave,
such as the sight of the face, or touch of the palm of the
hand, that certainly docs not occasion the prohibition of
affinity. Where, again, the sight or touch is not competent
to any other than a husband, or the owner of a slave, as,
for example, the sight of the nakedness, or kissing, or
touching with desire such parts of the person as are usually
covered or concealed, there is a difference of opinion on the
subject; according to that which is best supported by
tradition, these arc only productive of abomination, and
even those who consider that actual prohibition is incurred
by them limit its effects to the father and son of the person
who has seen or touched the objectionable parts of the
person, and do not include within them the mother or
‘daughter of the woman who has been seen or touched.
Miscellaneous Cases.
These have been arranged into two classes, as they
relate to unlawful conjunctions, or to women who are
specially prohibited for cauecs applicable to their particular
condition. The cases that relate to unlawful conjunction
are four in number, and as follows : —
Conjnno- First.** If a man should have married two sisters, the
tion of two
sisters by ^ Ahoo Jafer 2'oo^e,
contract. « have been omitted, one as being of little importance and
insufficiently vouched, being introduced by a keeUy or “it is said ; ”
and tlie other, because it more properly belongs to the next cause of
prohibition, under whicl) it will bo found at p. 28 .
UNLAWFUL MASBIAOKS.
25
contract with the first is valid and that with the second
void. If both are included in one contract, it is maintained
by some of our doctotrs that the contract ie void as to both.
But there is a tradition that ho has an option, and may
choose whichever of them he pleases. The first opinion,
however, is more agreeable to the general principles of tho
law, and tho tradition is weak or iusufiiciently authenticated.
Second. If a man, after having had sexual intercourse Oinjunc-
with a slave by virtue of his right of property in her, should 8iXw,ono
marry her sister, it is maintained by some of our doctors by^tract
that the marriage is valid, and the woman first enjoyed by other by
right of property rendered unlawful to him so long as ho proi'erty ;
remains united to the second. Further, if a man, having
two female slaves who are sisters, should have connection or both by
Avith them both, it is in like manner maintained that the property,
first is prohibited to him after his intercourse with the
second till ho has parted with his property in the second.
Some, again, are of opinion that if his intercourse with the
second was in ignorance of the relationship between them,
the first is not prohibited to him, and that if lie was aware
of tho relationship the first is prohibited to him until he
parts with his ownership in tho second, without any inten-
tion of returning to the first ; for if he has any such inten-
tion, tho first is not rendered lawful to him. It seems,
however, to be more agreeable to the general principles of
law that the second only should be prohibited to him in
both cases, and not tho first. .
Third, Tho marriage of a slave on a free woman, that is, Co-adjnnc-
by a man who is already married to a free woman, except davc*by
Avith her consent, is unlawful ; and a contract entered into contract to
without waiting for her consent is void.*' It is maintained ^omn.
by some of our doctors that tho*frco woman has an option,
and may cither cancel or alloAV the marriage with the slave,
or cancel her OAvn contract. But tho first opinion is more
agreeable to tho general principles of the law. If, again, a
man should marry a free woman on p slave, that is, whoji
** According to tho Hanifite doctrine, consent is apparently in-
sufllcicnt to legalize tho contnvit. D., p. 96/
26
MABBIAOE.
already married to a alave, the contract would be lawful,
but the free woman, if ignorant of the existing connection,
would have an option with regard to hersolf. And if a free
woman and a slave are married by one contract, the contract
as to the free woman is valid, but not so as to the slave.
Fourth. When a man has had sexual intercourse with
a girl under the age of nine years, and has ruptured the
parts,^" it is unlawful for him to have further connection
with her, but she is not released from her ties, if connected
with him by marriage or slavery. If no rupture has taken
place, the prohibition is not incurred according to the most
valid opinion.
The second class of cases, or those that relate to women
who are specially prohibited for causes applicable to their
particular condition, are six in number, and as follows : —
Unlawful First. When a man has married a woman in her iddnt,
womi^ “ with knowledge of the fact, she is for ever unlawful to him.
(luring her And even though ho were ignorant of the fact, or of the
unlawfulness of marriage in such circumstances, yet if
consummatioh has followed, the prohibition of all future
connection with her is in like manner incurred. If coition
has not taken place, the existing contract only is void, and
he is not prohibited from entering into another with her,
de novo.
Paternity Second. When a man has married a woman in her
and pregnancy has ensued, the child of which she
sneheir- may bo delivered is to be affiliated to him, if he were
ignorant of its mother being in iddut at the time of hei;
marriage to him, or of the unlawfulness of marriage in
such circumstances, provided that the child is bom at six
months or more from the time of consummation. The
parties are nevertheless to be separated, and the husband
is liable for the dower mentioned in the contract, while the
woman must complete her iddut for the first marriage, and
then enter on another on* account of the second.
^
** Afzdha. Literally, “ haa widened her.” Tlie legal acceptation
of the term in this place is utrumque meatum natura in altero
eonUteere faaens impetu eongresm. Im. D. Note, p. 227. This
case moi;e properly belongs to tho next class.
nNIiA\miL MABBUQEB.
27
Third. When a man has had illicit intercourse with a A man is
woman, he is not thereby prevented from marrying her,
even though she is 'notoriously profligate. And, in like marrying a
manner, if a man’s wife should commit adultery, and even ^t^hom
persist in such courses, sho does not become unlawflil to
him, according to the most valid doctrine. But if a man tcrcourso.
should commit adultery with a woman who has a husband, unless she
or is in her iddut for a revocable divorce, she is rendered
perpetually unlawful to him according to the common or iddut of
generally received opinion.'^ another.
Fourth. A man who has done wickedly with a youth,
cannot lawfully contract marriage with his mother, sister
or daughter ; but none of those to whom ho may have been
previously contracted is thereby rendered unlawful to him.
Fifth. When a moohrim h&s entered into a contract A moo/jrtm
of marriage with. a woman, knowing that it is not lawful ^t^ct
for him so to do, she is for over unlawful to him. But if marriage,
he were not aware of the illegality, though that contract is
vitiated, the woman herself is not prohibited to him, that
is, he may lawfully enter into anotlier contract with her.
Sixth. A woman who has a husband is not lawful to ^
another man till after her separation from him and the cannot
completion of her iddut if sho bo liable to observe one. lawfully
^ many
another.
Fourth Cause op Prohibitioh.
Completion of Niimher. •
. By number is here to be understood, — First, the num-
ber of wives to which a man is restricted, and, second, tho
number of repudiations which render a woman unlawful to
her ropudiator.
First, as to tho number of wives. — ^When a free man No man
has filled up the number of four wives by permanent con- ^ore Aan
tract, any in excess of that number is prohibited to him ; four wives
•
This important doctidno does not seem Jo be recognized by the
otlicr sect. * *
A pilgrim after ho lias come within tho sacred terntory, and
put on tlie ihram or pilgrim’s dress. Ho is not prevented from
marrying by tlic other sect. «Z?., p. 20. ^
28
MABBUGE.
by perma- and it is not lawful for him to have more than two slaves
tiwtatfte out of the four. When a slave has filled up
801110 timo. the number of four wives who are slaVes, or two who are
free women/* or three, one of whom is free and the others
are slaves, any in excess of these is prohibited to him.
r "’th parties, that is, either the free man or the
temporoiy slave, may many by temporary contracts as many as he
right^f pleases. So, also, he may retain them by virtue of bond-
property. ago or right of property.
Afterrepn- When a man has repudiated one of his four wives, he
orthe^foar canuot lawfully enter into another marriage until she has
hTranS if tb® repudiation were revocable,
ninny an- Bat if it was absolute or irrevocable, he may immediately
cx'lrotbn ® contract with another woman. And the rule
of ***** is the same as to marriage with the sister of his wife.
tddut; Further, it is abominable to separate from a woman for the
purpose of marrying her sister.
nor bvo When a man has repudiated one of his four wives irre-
b^ono vocably, and married two others, one before the other, the
contract contract with ‘the first is to be sustained ; but if the con-
tracts were simultaneous both are void. There is one
tradition, however, that ho has a right of choice between
the two, but it is weak or unsufficiently authenticated.
Athiico Second, as to the number of repudiations. — ^Whon a
womro free woman has filled up the number of three repudiations
cannot be she is unlawful to the repudiator until she has been married
tiUinte^ {o another husband,™ whether she were the wife of a free
mediately man or a slave. And when a bondswoman has filled up.
ra^er;^^^® Diiinber of two repudiations she is unlawful to her
repudiator until she has been married to another hus-
nor a mfe band, even though she were the wife of a free man. When
diyoiwdbo * r®P’idiatcd woman has fifled up the number of nine re-
rc-mnrricd pudiations for the iddut, being intermediately married to
two other men, she is prohibited to the repudiator for ever.
This is the case, referred to in page 24. By the other sect a
slave is prohibited from having more than two wives' at one time,
whether they be free or not. D., p. 30.
™ According to the other sect, marriage is not sufficient without
consummation. D.,j>.44. Andseepott, p. 124,
XJNLA\ra'UL MABBIAOES.
29
Fifth Cause of Pbohibition.
^ §
LUn or Imprecation.'^
This is a cause of perpetual prohibition of the impre-
cated woman to her imprccator. And such slanders of a
deaf or dumb woman as would occasion lidn with regard
to one not so afflicted, has the same effect though the lidn
does not actually take place.
Sixth Cause op Prohibition.
Infidelity.
It is not lawful for a Mooslim to marry any woman A Moodim
who is not a kitahecah ; ® and so far all are agreed. With ^any'^any
regard, again, to a kitabeeah who is a Jewess or a Christian, l>ut a kita-
there are two traditions, and, according to the most noto-
rious or generally received of these, a permanent marriage nor any
with either of them is forbidden to him, but a temporary
marriage, or one by right of property, is lawful.*’ Andbyaper-
tho rule is the same with regard to a Mujooseah or fire-
worshipper.
If one of two spouses should apostatize from the Mus- Marriage
Bulman faith before connubial intercourse has taken place,
their marriage is cancelled on the instant, and the wife stasy.
has no right to dower if the apostasy be on her side ; but
if it is on the side of the husband, she is entitled to half
the dower. If the apostasy does not take place till after
’ connubial intercourse, the cancellation of the marriage is
suspended till the expiration of the iddut, whether the
husband or tho wife bo the apostate, and no part of the
dower abates, because the right to it has been fully
established by consummation. There is an exception,
however, if the husband wore bom in tho faith, for in that
This subject is further discussed 162. It is not included
among the causes of prohibition by the Hanifite sect.
" Fem. of hitnbee, relative noun, from* a book ; applied^ to
all who are supposed to have divine revelation, but generally used
to the exchuion of Mooslims.
*’ No such restriction reeognized by the other sect.— H., p. 40.
80
MABBUGE.
case the marriage is cancelled immediately, though it
should have been followed bj^ connubial intercourse, because
a return to the faith is not allowed. '
Effect of Wlion the husband of a kitaheeah is converted to tho
to the faift Mussulman faith, his marriage is unaffected by the con-
of Jtldm version, whether it take place before or after consumma-
OT^emar- tiojj^ But if the wife of a kitdbee should embrace tho
Kitabees. faith of Iddm before her marriage has been consummated,
it is immediately cancelled, and sho has no right to dower.
If, again, her conversion does not take place till after
connubial intercourse, the cancellation of tho contract is
suspended till tho expiration of her iddtU. It is, however,
maintained by some of our doctors that if the husband bo
a zinimee or infidel subject, tho marriage remains as before,
except that he is prohibited from approaching her at night,
or being in retirement with her by day. But tho first
opinion is more agreeable to tho general principles of law.'*
Its effect With regard to unbelievers who are not kitabcee, their
marriage is cancelled by tho conversion of either of them
others than to tho faith Of Isldni ; immediately if the conversion is
Kitabeea. connubial intercourse, but not till tho expiration
of the idd/ut if such intercourse has taken place. If tho
wife of a gimmee or infidel subject should go into any
other form of infidelity than her own religion, cancella-
tion would also take effect immediately, even though sho
should return to her original faith; because no change
of xeligion is tolerated to one in her condition, except
a change to Isileim.''
A zmmee When a gimmee or infidel subject who has more than
m^than wivos embraces tho fiiith of Isldm, his marriage is
the legal sustained as to four of them who are free, or two who are
free and two who are slaves* that is, if he is himself free ;
must, on and if he is a slave, it is sustained as to two free women
and two slaves. If he has no more than tho legal number
, It is obvious from jMs that a Mussulman woman cannot bo
legally married to any one who is not of tliat frith ; by a permanent,
any more than by a temporary contract. See poat, p. 40.
" This distinction docs not seem to prevail among the Hanifites,
with whom all forms of unbelief are alike.
UNIiAWFTJIa MABRIAOEB.
31
of wives Ills marriage is sustained as to all ; but from any separated
excess above the legal number he must at once bo separated. ^o"2io
He has, however, a right of’ selection, which may bo number;
exercised in any form of words that is sufficiently demon-
strative of his intention to retain a particular wife, as, for
example, by his saying to one of them, “ I have chosen
thee,” or “ I have held to thee,” or the like. When the cisod by
choice has been duly mode, the marriage of the four first »
(in whoso favour it has been exercised) is established, and
the remaining wives are discarded. If he should say to any
above the legal number, “ I have elected to be separated
from you,” that would bo a rejection, and the marriage of
the others would bo established. So also, if ho wore to
repudiate four, all the remaining ones would bo rejected,
while the marriage of those whom he had repudiated would
first bo confirmed, and they would then be divorced ; for
repudiation is inapplicable to any but wives, since it is an
appointed means of dissolving the moiriago tie. But
Eela and Zihar are no evidence of clection,“ because they
are sometimes applied to other persons than, wives. The
election may also bo made by deed, as, for instance, by or by dccil.
connubial intercourse, which is plainly an evidence of
choice. So that if a man should have such intercourse
with four of his wives, the contracts with these would bo
confirmed, and all the rest would bo rejected. With
regard, again, to kissing, or touching with desire, these
also may be said to be exercises of the right of choice, as*
they amount to revocation in the case of a repudiated wife,
and may fairly be assumed to have the like effect in the
present instance."
** If one of the wives should die after their con- Though
t one of the
“ As to these, sooi«>*t,pp. 138, 147.
" Throughout tlie whole of tills case, it is implied that tho
zimmee is a kitabee, and his wives MtabwaJis; otherwise his marriago
would bo cancelled by his conversion to tho Mussulman Mtli. —
(P. .30.) . • .
** This case will be found at page 277 of tho original, being one
of several cases relating to zimmm, most of which have been omitted
as of little practical utility in ^dia.
82
MARRIAGE.
wives
should die
before he
has made
his elec-
tion, he
may still
elect her,
and is en-
titled to
inherit
from her.
Until bo
has made
his elec-
tion all
the wives
are enti-
tled to
main-
tenance.
version to the faith before he has made his election among
them, his right to elect her is not cancelled, and if ho
should make her his choice, he would bo entitled to par-
ticipate in her inheritance. So also if the whole of them
should die, ho would still have his right of choice as to
four among them, and would participate in the inheritance
of those whom ho might elect; for election is not the
renewal of a contract, but only the means of determining
who among the subjects of valid contracts shall retain
their condition of wives. But if the husband as well as
the wives should die, then it 'is maintained by some that
the right of choice is cancelled. It seems, however, to bo
more agreeable to principle that in such a case recourse
should be had to lots, as among the women there are
some who might bo heirs to the husband, and somo from
whom ho might have inherited. If the husband should
die before aU the wives, they must all keep iddut, as it
must bo incumbent upon some of them ; and as there are
no means of distinguishing between them, the longest of
the two prescribed periods ® should bo observed by way of
caution, when there is a possibility of each of them being
the widow; and when that is not possible,*® any among
them who is pregnant must keep the \d<lu,t of death, and
also of delivery ; and the hail (or one who is not so), the
largest of the two appointed for death and repudiation.
When the man and the women embrace the faith
otlsldm, it is incumbent upon him to maintain the whole
of (them until he has made his choice of four, after which
tho right of the remainder to maintenance is cancelled;
for up to tho time of making his election they are all in
the condition of wives. And tho rule is the same in the
event of the wives, or sortie of them, embracing the faith,
and he remaining in infidelity. If he should fail to give
them their maintenance they may sue him for what is
presently due, as also fer the past, or what is in arrear ;
‘ “ That is, of the uldut for repudiation, and tlie iddut for death.
As, for instance, if any of them ^ould have remained in
infidelity.
IHs follows immediately after the last case in the original.
UNLAWFUL MABRUGES.
33
and that whether he embrace the faith or remain in
infidelity. But he is under ,no obligation to maintain
them if he is converted without them, because of the
obstruction to connubial enjoyment.
A change of religion is a cancellation of mar- A change
riage, not a tiildky or divorce. If the change is on the
side of the wife, and it takes place before consummation, tion of
she has no right to any dower; whilo if it is on the
side of the husband, she is entitled to half the dower, vorcc.
according to the generally received doctrine. If the change
occurs after consummation, the woman’s right, having
been once established, is not affected by the supervening
event. If the dower mentioned in the contract is invalid,
the proper dower is substituted for it after consummation,
and also before it, when half of the proper dower becomes
due, if the cause of cancellation be on the part of the
husband. If no dower whatever has been assigned by the
contract, a present only is incumbent on the husband when
ho has given cause for the cancellation, though on that
point there is some difference of opinion.
When a Mooslim has apostatized after consumma- Connul)i{il
tion of his marriage, ho is prohibited from connubial
intercourse with his Mussulman wife, and the marriage, betwcni a
as already mentioned, is in suspense until the expiration ^ho has
of. the idduL If, notwithstanding the prohibition, heapsta-
should have such intercourse under a semblance of right„iifg
and continue in his infidelity till the expiration of her
Mat, the Sheikh^ has said that ho is liable for two*^^
dowers, one being the dower originally specified in the
contract, and another on account of the intercourse under
a semblance of right. But on this point there is some
reason for doubt, since she is still in the condition of a
wife, provided that he was not born in the faith.
Mooslim cannot compel his ziinmeeah wife towhatre-
wash after ceremonial pollutions, because that is not neces-
sary for the purpose of connubial »eiTjoymcnt. But if poiid by a
Page 270 of tlie original. “ See ante^ foot of p. 20.
Ih '^. * Pago 276 of the original,
i ^ Se^ante, p. 24. • * a
PART II. . . D *
84
MABBIAGE.
Mooslim bIio persists in what is a hindrance to such enjoyment,
zLmLift odours, or keeping her nails of an
wife. extreme and formidable length, he 'may oblige her to
refrain. Ho can also prevent her from going to Christian
churches or Jewish synagogues, as indeed ho may prevent
her from going out of his house. So also he can restrain
her from drinking wine or eating pork, or the practice of
any nnclcanness.
Section Fourth.
Things connected with the Contract.
'I’hcso are seven in number.
l'>iunlitj' First. Equality is a condition in mai-riage, that is, in
of respect of Islum,^ or the general profession of the Mussul-
acotulition man religion. Whether it is also a condition in respect of
or true belief,'^ is a question on which there are
two traditions ; but, according to the most notorious or
but appa- generally received of these, equality in respect of Ishim is
inrespeot required. In regard to the husband’s ability to
of ceman. maintain his wife, there is a difference of opinion ; some
insisting that it is also a condition of the contract, while
others deny this position, and tlicir opinion is more in
accordance with the general princiiffcs of the law. It is
Nor is it “Iso a question on which there ai-e opposing traditions,
necessary );^-l^ether a supervenient disability on the part of the
baud husband to maintain Ins wile confers on her the power
able 'to cancelling the man-iage. According to the most noto-
iimiutaiii rious Or generally received of these traditions, she has no
his wife, gmjjj pQ^e]._
Respects It is lawful for a free woman to marry a slave, or an
in which Arabian woman to many 'a Persian, or a woman of the
cipiahtyis - ti- i » , .1
not rcfinir- tnbe of Ilasliem to marry a man of another tnbe, and vice
versa, or the reverse is also lawful. In like manner, men
_
According to the Hanilites, it is Isldm of paternal ancestry
that is particularly ineAnt — (/>., p. 03.) The same is probably
intended here.
^ The term is restricted by the Sheeahs to themselves, as dis-
tinguished from other sects. See Im^D.f p. 420, note.
ONIiAWUIi MABBIAOES.
35
engaged in worldly trades may lawfully enter into the
contract of mamago with women possessed of property, in
debts omng to them and in houses.
If a moomin,'^ or true believer, competent to maintain A trac
a wife, should pay his addresses to a woman, it is in-
curabont on her to accept him, though ho be her inferior competent
in respect of nimit), or ancestry ; and it would be sinful
in a guardian to forbid the marriage. According to some *"<1 a<i-
of our doctors, if a man, who professed himself to bo of woman,"
one tribe, should prove to belong to another, his wife be
would bo at liberty to cancel the marriage. But this is '* '
denied by others, whose opinion is more in conformity
Avith tho general principles of tho law.
It is abominable for a woman to marry a profligate ; C^nncc-
and the abomination is aggravated by his being a con- wHch are
finned wine-drinker. So also it is ' abominable for a accounted
w'oman avIio is a truo believer to many a mookhalif, or ,jbie.
opposcr;^" but there is no objection to her marrying a “
vioosimif, or ono weak in his belief, who docs not know
tho grounds of conj^versy.
Second. Whero^ 'man has married a woman, andAiamafic
afterwards discovers that she had boon prievously gnilty
of fornication, ho has no right to cancel tho maniagej nor on account
lias ho any claim against her guardian to refund tho
dower. There is one tradition in favour of his having a ofthcivifc,
right of recourse against the guardian, and ono that tho
woman is entitled only to such a sndak, or dower, as may
be a sufliciont compensation for the enjoyment of her
person. But the tradition is not generally received.
Third. It is not lawful to court a woman during her Not lawful
iddut for a revocable repudiation, for she is still the wife woman*" "
of another man; but awomad who has been repudiated during her
three times may bo lawfully courted during the
either by tho repudiating husband or by another man,rcpndi8-
thongh by neither should it be done in direct terms.
With regard, again, to a woman whQ has been ropudiatpd
“ Participle, from the increased infinitive eeman.
Of any general usage, according to Freytag, but here probably
meant for some particular secat.
86
MAKRIAQH!.
niue times, mth two intermediate mamages to other men,
it is not lawful for the repi^diating husband again to pay
his addresses to her, but another may lawfully do so,
though not directly during her iddut for the first husband
or for either of the two others. A moodtuddah, or woman
in iddut, for an absolute separation from her husband,
either by khoold'^ or by cancellation, may lawfully bo
courted % the husband or by another man, and in express
terms by the husband, but not so by the other. The
indirect way of addressing a woman is to say, “ I greatly
Yctifdone, love ” or “ desiro thee,” or the like ; anJ the direct way,
and the jjg ghould speak to her in lanffuage that will admit
woman is ,
married on of no other construction than marriage, as, for example,
of by saying, “ When your iddut is over, I will marry you.”
If one should make an express proposal to a woman in
thereby circumstances that render it unlawful, and should after-
jirohibitcd wards marry the woman on the expiration of the iddut,
^„”^“®‘she would not be prohibited to him by reason of the
irregularity.
A woman Fourth. ‘When proposals of marriage have been made
Imrad by ^ woman, and she has accepted them, it is maintained
accepting by somo of our doctors that it is unlawful for another to
•prop^ofPC'y his addresses to her; yet, if she should marry the
marriage, other, the contract would be valid.
Marriage Fifth. When a thrice repudiated woman enters into a
fnto by a «!Piitract of marriage, and stipulates that, as soon as the
tbricerc- husband has legalized her to her former husband, there
woman on shall be no marriage between them, such a contract is,
condition yoid. It is sometimes maintained, however, that the con-
voiVafter^ dition is surplusage, and that if a woman should expressly
iiecn**r stipulate for re2)udiation, the marriage would bo valid, and
i^d to her tho condition void; and that if consummation should take
band^ir would be entitled to her jiroper dower. If there
not valid, is uo express condition in the contract, and it is merely the
intention of the parties, dr of tho wife, or her guardian,
that she shall bo immediately repudiated, the contract is
• not invalidated. . In every case in which it is said that tho
”, Seaport, p. 129.
U>aiAWFUL MAnniAGES.
87
contract is valid, the woman is rendered lawful by coition
to tho first repudiator, that i^s, after she has been legally
separated from thd second husband, and her iddut has
expired; and in every case in which it is said that the
contract is invalid, she is not rendered lawful to the first
repudiator ; for coition with another man is not alone
sufficient for that purpose, without a valid contract.
Sixth. A shighar marriage is void. That is, when two A sh^har
women are moi'ried to two men with a condition that tho tvhat
miirriugo of each is to bo the dower of tho other, both it is/
^namages are void.” But if each of two guardians should Coms
marry his ward to the other, and they should stipulate for
thoir respective wards a known dower, tho marriages would where the
be valid. And if one of the guardians should marry his ward valid,
to the other, and stipulate that the other should reciprocate
by marrying his ward to him for a Icndwn dower, both con-
tracts would be valid ; but tho dower would bo void, because
with it there is a stipulation for marrying, which is not bind-
ing on tho party, and marriage does not admit of an option.
The woman is, therefore, entitled to her ’proper dower.
Upon this point, however, there is room for some doubt
or hesitation. So also, if one of the guardians should
many his ward to the other, and stipulate that the husband
should many such an one to him, without any mention
of dower, tho contracts would be lawful, and tho woman
entitled to her proper dower.
Further, if one person should say to another, “ I have Continued.
. married my daughter to thee, on condition that thou shalt
marry thy daughter to me, so that the mai-riage of my
daughter shall bo the dower of thine,” tho marriage of his
daughter would be valid, but that of the other’s daughter
would be void. But if he should say, “ on condition that
the marriage of thy daughter shall be the dower of mine,”
tho marriage of tho speaker’s daughter would bo void, and
that of tho other’s daughter valid.
• —
” According to the Honifites, tho contracts are effected, but the '
condition is void, and each woman is entitled to her own proper
dower.— Z)., p. 04 . •
* A a
88
MABBIAGE.
Some mar-
riages that
ore ac-
counted
abomin-
able.
Seventh. It is abominable for a man to enter into a
contract of marriage with 9 nurse who has brought him
up, and with her daughter ; or to marry his son to the
daughter of his wife by another husband, whom she has
borne after her separation from himself. But there is
no objection to such a contract if the daughter were the
fruit of a marriage previous to his own. It is also abom-
inable for a man to marry a woman who was co-wife with
his mother, previous to her marriage to his father, or a
woman who has been guilty of fornication without repent-
»ance for her fault. •
Property, or one of tlie parties being the slave of the other, is
not expressly mentioned by the author of the Shuraya among the
(•auscs of prohibition in marriage ; but it seems to bo assumed. For
it is stated at p. post that, “ if a person should marry a female the
property of several owners, and should purchase the share of one of
them in his wife, that would cancel the mamage ; ” and the author
had already said, in the Book of Tijariit (p. 177), ‘^that, when ono
of two spouses becomes the proprietor of the other, the right of pro-
perty is confirmed ; but the zowjeeut, or relation of liusband and
wife, is not confirmed.” Moreover, it is expressly stated in the
Jmamcea Digest (p. 131), on the authority of the Tiilireei\ that, “ if a
husband purchase his own wife, or a wife acquire her husband in
property, it is valid ; but their marriage is thereby annulled.” It
would seem, therefore, that there is no ditfercncc between the Sheeas
and the Hanifites on the point in question. — See Ih, p. 42.
( 89 )
CHAPTER 11. • .
OP TEMPOEARY MARRIAGE.
Temporary marriages are permitted by the Mussulman
religion, because they were authorised by lawful authority,
and there is nothing to show that the permission was over
abrogated.* The subject requires an explanation of tho
pillars and tlje laws of the contract.
Section First.
Tlie Pillars of the Contract.
These are four in number, — the Form, the Subject,
the Period, and tho Dower.
First. With regard to the Form of tho contract, or tho Form,
words appropriated by law to tho declaration and acceptance
by which it is constituted. The proper words for the deck- Words rc-
ration are ziiwwujtdku, muttmtoku, and anktditokuy any of
which is sufficient for tho purpose ; and by none other cm tution.
the contract bo effected, as, for instance, by the W'ords tumlcck
* (transfer), heba (gift), or ijanih (lease). The acceptance
may be expressed by any words indicative of assent to the
declaration, as “I have accepted the nikuh,^* or “the
mootd.'^ Or it maybe shortened by merely saying, “ I am
content.” If a commencement be made with tho accept-
ance, by the man’s saying, “ tuzmvwujtoki,'' and tho
woman’s saying, “ zuwivvjtolm^' ® there would bo a valid
contract. It is, however, a necessary condition that both
the declaration and the acceptance should be expressed' in
* The Ilanilites differ on tliis point.— p. 18, note
* See ante, p. 3, note ,
40
MABBUOE.
Must be in the past tense ; for if the man were to say “ akbulo/' or
tcnsr** '* area" which mean, “ I do or will accept,” or “ I am or
will be content,"® there woftld be no contract, even though
he used the words intending that they should bo under-
stood in an initiatory sense. It has been said, however,
that if ho were ’to use the word atuzuwumjtoki (“ I do or
will take thee to wife ”) * for such a period, at such a dower,
with an initiatory intention, and she should say " zuwicuj-
toliu," there would l)e a valid marriage. So also, if she
were merely to say “ Yes.”
Subject of Second. "With regard to the Subject of the contract, it
traermust **' *^®< 5 essary condition that the wife be a Mooslmah or
1.0 a Moos- a Kitaheeah, by which is meant a Jewess or a Christian,
® Majoomdh, according to the most common or
generally received of two traditions;® and the husband
should restrain her from drinking wine and other unlawful
practices.
And n A Mussulmau woman cannot enter into a inootA con-
‘‘“y religion. Nor is
enter into it lawful for ikMoosluit to enter into the contract with an
((rt'or'thim idolatress ; nor for one who is erect or straight in his own
a Moosiim. belief to contract with one of a sect who is notorious for
enmity, such as the KImryites ; nor for a slave to be taken
in moota by one who is already manied to a free woman,
except with her consent, and such a contract entered into
without her consent would be void. So also, if a man
should marry by mootd his wife’s niece, whether the
daughter of her brother or her sister, mthout the consent
of his wife, the contract would be void.
Other re- It is proper, though not necessary as a condition of
jlropOT* validity, that the woman who is the subject of the contract
though not should bc a Moomin, or true believer,® and chaste ; and that
nwessar}^ due inquiries be made into her conduct, if liable to suspicion,
in the sub- If the Woman is actually a zaneeah, or addicted to fomica-
jeet of the
contract. •
® The original words are in the aorist tense, whicli is employed
^ in the Arabic language for both present and future.
* See ante^ p. 3. * See antey p. 29.
® See antey p. 34, note
TEMPOBABY MABBIAGE.
41
tion, it is abominable to enter into the contract ^vith her ;
and if she has ever been guilty of anything of the kind, she
should be strictly prohibited from a repetition of such conduct.
Further, it is accounted abominable to enter into a contract
of this kind with a virgin who has no father ; and if ono
should do so, he ought to refrain from connubial intercourse
with her. Still that is not actually prohibited.’
Third. With regard to Dower. It is an essential con- Some
dition of this contract, and peculiar to it, that some dower
should bo specified, so that if there is a failure in this spccilicd ;
respect the contract is void. It is also a condition that the
dower be something that is actually owned and possessed,
and is known by measure, w^eight, inspection, or descrip-
tion. Its quantity is left to be determined by the mutual
agreement of the parties, whether it be much or little, even
so little as a handful of wheat ; and it becomes binding on
the husband by virtue of the contract. So that if he wer4 and jsdno
to make the woman a mft of the tcrm,^at is, 'vaive
right to her altogctheiM before coition, ho would still; be tract,
liable for half the dower ; and if coition should have taken
place, she is entitled to the whole dower, on condition of
her keeping the tcrm,^r adhering to him till its comple-
tion); but if it is not completed, he is entitled to deduct a
proportionate paiTbTIEe dbww. If, again, it should prove
that there wbs an inherent defect in the contract, either by
its appearing that she was the wife of another man, or the
sister or mother of his own wife, or anything similar, that
^yollld bo a sufficient ground of cancellation ; then, if no
coition has taken place, she has no right whatever to
dower, and must return any part of it that she may have
received. But if the causes of cancellation do not transpire
till after connection has taken* place, she is entitled to
retain whatever she may have actually received, though ho
is under no obligation to deliver the remainder. Yet, even
in this case, it w^re perhaps better to say that it is only in
’ Three cases in the original, illusti*ative*of*tlie effect in a moot’d
marriage of the conversion to hh'm of ono of the spouses, are
omitted, as being sufficiently obvious, and substantially tlic same
as those mentioned in page 30 . • ^ ,
42
MABRIAGE.
There
must also
be a fixed
period,
ioDger or
shorter as
may bo
agreed
upon by
the panics.
the event of. her having been ignorant of the existence of
the cause of cancellation, that she is entitled to retain
o
whatever portion of the dower sho may have received, and .
that if she were cognizant oi the defect in the contract, she
is bound to refund.
Fotirth. The Period. This is also an essential con-
dition of the mootd contract ; and if there is no mention of
any time, the contract becomes permanent. The extent of
the period is left entirely to the parties, who may prolong
or shorten it to a year, a month, or a day ; only some
limit must be distinctly specified, so as to guard the period
from any extension or diminution. Even if the time were
fixed at part of a day, the contract would be lawful,
provided that its limit is distinctly ascertained; as, for
example, by the declining or setting of the sun. It is also
lawful to specify a month to commence immediately after
the contract, or at some interval from it. If mentioned
generally, the mouth next to the contract is to be under-
stood. If he should abstain from her until a part of the
specified time has expired, that is to be deducted from the
contract, but she is entitled to her full dower notwith-
standing. If ho should say “ once ” or “ twice,” without
fixing a time, the contract would not be valid as a mootd,
but would be pemanent. There is, however, one tradi-
tion in favour of the legality of such a compact, subject to
this condition — that ho is not to look upon her after the
occurrence of the specified act. But this tradition has
been rejected as insufficiently authenticated ; and if a con- ,
tract were made in the terms above specified, it would be
held to bo pcimancnt; while if the acts were brought
within the compass of a psi^ioular time, the contract would
be valid as a mootd, or temporary one.
Section Second.
T}i^ Laws oftJie Contract.
These are eight in number.
The term Pint. When the term and the dower have been men-
mnsttoA tioned the contract is valid; knd if there is a, failure ip
TKMPOBABT MABBIAGlil.
4d
respect of tho dower while the term is mentioned, the Im men*
contract is altogether void; hut if there is a failure
respect of tho term while the dower is mentioned, tho
contract, though void as a mootd, is valid as a permanent
marriage.
Second. Every condition stipulated for in this contract Nostipula-
must bo mentioned at the time of the declaration and „
acceptance ; and no effect whatever can be given to any made at ^
previous stipulation unless it be repeated at that time, nor
to any condition made after it. With regard, again, to a tract,
condition that has been mentioned in the contract, there is
no necessity for its repetition after it ; though some of our
doctors are of opinion that the condition should be repeated
after the contract. This, however, is far from being
correct.
Third. An adult and discreet female may enter into a Discreet
mootd contract ; and her guardian has no right to object,
whether she be a virgin or not. hcrscll.
Fourth. It is lawful to stipulate with the woman that stipnla-
sho shall come by night or by day ; and also* to stipulate
for once or twice within the specified period. course.
Fifth. The practice of izV is lawful with a mootd wife, Thopr^
and is not dependent on her permission. If she should
become pregnant notwithstanding tho izl, tho child is the
temporary husband’s, on account of the possibility of some
of tho seed remaining contrary to his intention. But if ho .
should deny tho child, the denial is to bo sustained, appa-
rently without any necessity for Lidn.
Sixth. This form of marriage docs not admit of repu- Does not
diation; but the parties become absolutely separated on^™,jj“f
expiration of tho period. Nor ^oes it admit of Eela or tion ;
Lidn, according to tho prevalent doctrine.- Witli regard to
tho operation of Zihar in such a case, there is some differ-
ence of opinion. According to that which is best founded
on traditional authority, it may te exercised under this
form of marriago." • *
" Extrdhere ante emunonem semwie.
, * SeefXMt, p. 140. * •
44
MARRIAGE.
nor confer Seventh, By this contract no rights of inheritance are
of established in favour of the parties, whether there be an
ancc. express condition to that effect, or 'the contract is left in
general terms, without any stipulation in either way. If
there is an express condition for mutual rights of inherit-
ance, or for such a right in favour of one of the parties,
some of our doctors are of opinion that effect must be
given to the stipulation. Others, again, insist that the
condition is not binding, because inheritance is not esta-
blished except by the law, and the stipulation would be in
favour of persons who arc not heirs, and therefore tho
same as if it were made in favour of absolute strangers.
The first opinion, however, is most generally approved.
An iddut Elf filth. After the expiration of tho period, if there has
kepf a^°ex- connubial intercourse between the parties, tho
piration of woman must observe an iddut of two returns of her courses,
the teim. q^q tradition, indeed, a single occurrence of
them is sufficient ; but this tradition is rejected. If tho
woman has never had them yet does not despair, the iddut
is forty-five days. For the death of her husband tho
woman must observe an iddut of four months and ten days
if she is not pregnant, even though connubial intercourse
has not taken place ; and if she is pregnant the iddut must
continue till the more distant of two events, that is, the
completion of four months and ten days, or delivery. If
the woman be a slave her iddut, supposing that she is not
pregnant, is two months and five days.
( 45 )
CHAPTER m.
OF THB MAltBLVOE OF FBMAIiE SLAVES.
This marriage may be either by contract, or by right of
property.
Section First.
Marriage of Female Slaves hy Contract,
The contract may bo either permanent or temporary, as May bo
in the case of free women ; and many of the rules applic-
able to both have been already set forth. To those the raiy.
following are now added : — •
First. It is not lawful for slaves, whether male or iLimago
female, to contract themselves in marriage without the
permission of their masters. If either of them should do without
so without such permission, the contract is dependent on n>faii ^n
the master’s assent. Some of our doctors maintain that o*" *“'*»«-
the assent is as a new contract, while others insist that of
the contract in both cases, that is, whether the slave be
mide or female, is absolutely void, and the subsequent renders
assent therefore surplusage and of no use. There is a
fourth opinion that would restrict the effect of tho master’s wife’s
assent to a contract entered into by a male slave, exclusively
of one by a female. But of all these opinions the first is ance,
that which is best supported by traditional authority. So
that, when the master has given his assent, the contract take the
is valid, and he becomes liable fof the dower incumbent
on his male slave, together with the maintenance of tho slave,
slave’s wife, while he is entitled to the dower of his female
slave. The rule is tho same whether each of the slaves
belongs to a single master^^or to several masters; apd in several
46
MABBIAaE.
masters, the latter case, though one of them should consent to the
con«fff marriage of their slave, the contract would not be lawful
without the consent of the others^ or their subsequent
allowance of it, according to the most approved doctrine.
When both Second. Wlicn both the parents of a child are slaves,
arc Cds ** ® slave, and if they belong to one oTOcr
their child the child is his exclusive property. If the parents belong
slav^* to different owners, the child is their joint property in
equal shares. If there was a stipulation that the child
should be the property of one of them, or that the
share of one of them in the child should be greater than
that of the other, effect must be given to tho condition.
When When one of the spouses is free, the child is to be
frcc'thc affilifited to him or her, whether the free parent be tho
child he- father or the mother,* unless the master of tho other had
tho^freo stipulated that the child should be a slave, in which case
parent. effect must bo given to the condition, according to the
most approved doctrine.
A freeman Third. When a freeman has married a slave without
X^w"ifh-the permission of her master, and, before obtaining his
mstcr^s contract, has connubial intercourse with
])crinis- her, knowing the illegality of tho connection, ho is a zanee
fornicator, and liable to tho hvtdd or punishment
zj«a,and Specially appointed for tho offence. If the slave were
their'^ter^ also aware of the illegality sho has no right to dower, and
conrse be- any child of which she may bo delivered is the slave of her
the^(^ owner. If, on the other hand, the freeman were ignorant
tber’s of the unlawfulness of tho contract, or there is any
tlnkss the semblance of right in tho case, he is not subject to tho
father were /(7w?d, but is liable for dower, and tho child is free, though
his father is bound to make good to the OTOor of its
Kality, mother the value of the child as of tho day on which it was
(•^.'"the alive. So also if a freeman should enter into a con-
child is tract of marriage with a slave on tho faith of her own allega-
tion that she is free, he would in like manner be liable
for her dower, though some of our doctors are of opinion
' According to tho Hanifites, the child follows in all cases the
condition of its mother. — D., p. 363«
THE maheiage of female slaves.
47
that the liability is only for a tenth of the dower if she
is a virgin, and half a tenth if she is not so ; and her
children by him are. slaves, but it is incumbent on him to
ransom them by paying their value, which the master is
bound to accept, and to surrender them to him on these
terms. If the husband has no property he may work out
their ransom by emancipatory labour ; but whether, if ho
refuse to do so, it is incumbent on the Imam ® to ransom
them, is a question on which there are different opinions,
some maintaining the affirmative, in reliance on a weak or
insufficiently authenticated tradition, while others insist
that the ransom is by no means incumbent on the Imam,
because the father is liable for the value of the children.
Fourth. Wlicn a man has married his male to his ^ master
female slave, some are of opinion that it is incumbent on hirScto
him to give her something by way of portion, while others
maintain that it is not so ; and it wore, perhaps, more in bonnd to
accordance with the general principles of law to say, that
it is proper and becoming in him to make her some allow- way bc
ance on the occasion of her marriage, but by ao means an
incumbent duty. If he should die, his heirs have the
option of either allowing or cancelling the contract. ” But heirs may
the slave herself has no option in the matter.
* ^ iDnrriflgc.
Fifth. When a slave has married a free woman, with a free wo-
knowledge on her part that it was without the permission
of his master, she has no right to dower, nor even to slave with-
maintenance, if she w^ero also aw’aro of the unlawfulness of
such an union, and her children are slaves; but if she of hismas-
w*cro ignorant of its illegality, they are free, without any ^nUtlcTto
liability on her part for their value. If connubial inter- dower,
course has taken place, she is also entitlgd to dower as
against the slave, for which he ihay be sued if ho should
ever obtain his freedom.
Sixth. When a male slave has married a female slave Tlio issue
belonging to another than his owi> master, the children of
the marriage belong to the masters jointly, whether they tween
slaves bc-
* Head of the Mussulman community.
^ Even, it would seem, though the marriage had been sanctioned
by him.— See post, p. 60 , as to purchaser’s pojver to cancel. •
48
MABRIAGE.
longing to
different
masters
is their
joint pro-
perty.
A person
who mar-
ries a slave
belonging
to two
ow'ncrs,
and pur-
chases the
share of
one of
them, is
prohibited
from con-
nubial in-
tercourse
with her.
Because a
woman
cannot be
both allow or refuse their assent to the marriage. But if
one only assents, the children belong exclusively to the
other. So, also, if a male slave should have illicit inter-
course with a female the property of another, the child
would belong to the master of the latter.
Seventh. If a person should marry a femalo the pro-
perty of several owners, and should purchase the share of
one of them in his wife, that would cancel the marriage,
and it would be no longer lawful for him to have connubial
intercourse with her. Even though the other partner
should allow the marriage subsequently to the purchase,
that would not remove the prohibition. Some, however,
arc of opinion that sexual intercourse with her would
thereby be rendered lawful, but the opinion is not well
supported. If he were merely to legalize her to him,^
that, according to others, would render their intercourse
lawful, and there is a report to that effect. But this has
also been denied, because the cause which renders sexual
intercourse lawful does not admit of division. In liko
b owner of half a partially cman-
virtuc of ^ cipated woman, it would be unlawful for him to have such
tilict ii^t^^conrse \dtl\ her, either by virtue of bis right of pro-
rights. perty or of a permanent contract. Some, however, have
said that it would be lawful if the contract were by 7nootd
restricted to a particular time, and there is a report to that
, effect ; but the doctrine is still open to doubt and difficulty
for the reason just mentioned.
As adjuncts to the marriage of slaves, it is necessary
to consider the effects of Emancipation, Sale, and Divorce.
I. As to the effect of Emancipation on the marriage of
when When a femalo slave is emancipated, she may
cmaiici- cancel her marriage, whether the husband be free or a slave,
pated has gome of our doctors have made a distinction between the
andinay' two cases, which soemTs more agreeable to the general
mwSagr option thus allowed to her must,
^ See post, p. 64.
^ That is, lhat she has the option only when he is a slave, as is
apparent from what follows. ,
THE MABEIAGE OF FEMALE SLAVES.
49
however, bo exercised immediately. When a male slave But a male
is emancipated, neither he nor his master have any option, ,*0
nor has his wife, whether she be free or a slave ; for, as option,
she was satisfied with her husband when he was a slave,
much moro should she bo so now that he is free. But if
they were both the slaves of one master, who emancipates
them both, she has her option, notwithstanding the eman-
cipation of her husband. And the result would be the
same if they were the property of different owners, who
concurred in emancipating them at the same time.
The emancipation of a female slave may bo lawfully The cman-
mado the subject of her own dower, and the contract may a
bo established against her by maldng the word of contract
precede that of emancipation, as, for example, by the ject of
man’s saying, I have married thee, and emancipated
thee, and made thy emancipation thy dower;” for if the
emancipation were placed first, she would have a choice
being free, and might cither accept or reject the proposal.
But it has been said that this is not necessary, for phrases
joined together arc but one sentence ; and this is coiTCct.
It has been further maintained by some that the word of
emancipation should have the precedence, for the woman
is already lawful to her master, and there can bo no neces-
sity for a contract when the right of enjoyment is already
established by virtue of the right of property. The first
opinion, however, is the most common or generally received. ,
An oom-i-wuhtd, or mother of a child, is not cmanci- An oow-i-
pated till after the death of her master, and then only out cmanci-
of the child’s share in his estate.® If the share is insufii-
cient to make up her value, she must herself perform ter»g death,
emancipatory labour for the excess, her child being in
nowise liable to work on that account. Some of our share in
doctors, however, maintain his liability ; but the first J
opinion is moro agreeable to the principles of the law.
If her child should die during the lifetime of its father,
she returns to a state of absolute skvery, and may be beforchiui,
® According to tlie Hanifitos, she is emancipated out of the whole
estate.— Z>.^p. 378. * ,
PART 11. . E
50
MABlilAGE.
JoverMo lawfully sold. And oven while her child is alive she may
of absolute^® lawfully sold in payment of her original cost, if still
slavery, due, and her master has no other property besides herself.
Some of our doctors go so far as to maintain that she may
bo lawfully sold after the death of her master for the
payment of his debts, though there may bo no original
cost, (or, in other w'ords, though she may not have been
purchased, or if purchased, though her price be no longer
due,) when the debts absorb the whole estate so as to leave
nothing after they have been paid. If, while her price is
still duo by her master, he should marry her, making her
emancipation her dower, then g(?t her with child, and
finally die insolvent as to her price, she may be sold on
account of the debt. But whctlicr her child would, in
such circumstances, revert to a state of slavery, is a
question as to which, though it has been answered in the
afiirmativo on the ground of a report by Iliishan hen Salim,
yet the more approved doctrine on the subject is that
neither the emancipation nor the marriage is cancelled,
and that tile child does not revert to a state of slavery,
his freedom and that of his master’s having been once
completely established.’'
Salo of a
married
slave equi-
valent to a
divorce.
II. As to the cfifoct of Sale ou the marriago of slaves.
Where the proprietor of a female slave has sold her,
this is equivalent to a divorce, the purchaser having an
option cither to allow or to cancel the marriago." But the
option must he exercised immediately, if he elect to cancel
the mari’iage ; for if he is aAvaro of the contract, and delays
to cancel it, the contract is binding upon him. The same
rule is applicable to the marriago of a male slave when
he is married to a slave ; and even when ho is married
to a free woman and is sold, the purchaser has an option
according to one tradition, but it is considered weak or
insufficiently authenticated. When both the married parties
are slaves and belong to one owner, who sells them to
^ See further on tlie subject of the oom-i-wuhd in the section on
Inteelad, p. 67.
" The purchaser has no such option by the Hanifm code.
I'HS MAUBIACIE OF FEMALE SLAVES.
51
difforent purchasers, each purchaser has the optiou ; so,
also, if one person should purchase them both, he would
have the like option ; or if the owner should sell only one
of them, retaining his right to the other, the buyer and
seller would each have an option, and the contract between
the slaves would not be established without the consent of
both ; while if there should he any children of the marriage,
they belong to the master of the parents.
When a man has given his female slave in marriage, if the sale
he is entitled to her dower as already mentioned ; but if
he sells her before connubial intercourse, his right to it is place be- "
extinguished, because the marriage on which his right was “’V
founclca is cancolled by the sale. If the purchaser cliooses tercoursc,
to Siinction the marriage lie becomes entitled to the dower, lIjscrhiT
because his sanction is like a renewal of the contract. If right to
the sale does not take place till after connubial intercourse,
the first otvner, tliat is, the seller, is entitled to the dower, he retains’
whether the second, or purchaser, sanctions the marriage
or cancels it, because the right to the dower was completed
by the intercourse while the slave was his property. On
this point, however, there are various opinions, though the
coiToct doctrine is as wo have stated it.
If a man should contract his male slave in marriage, Krtect of
and then sell him before connubial intercourse, it has been
said that the purchaser may cancel the marriage, and that winter’s
the seller is liable for half the wife’s dower. But others of fMhal^tho
our doctors have denied both these propositions. ‘lower ;
. When a man has sold his female slave, and claims as «l.so .
his the child of which she is pregnant, while the purchaser Uationof*'
refuses to recognize his claim, the assertion of the seller is ^
not to bo received in cancclktio^^ of the sale, but is to be *
received as regards the afiiliation of the child, because it
is an acknowledgment which docs not injure anybody." daiinctl by
The point, however, is subject to some doubt.
nr. As to the Power to divorce, and* its Effects on the
marriage of slaves. male slave
- - has no
® A foetus in tlio womb is not included in the sale of the mother.
Ij. 133. * •
52
MABBIAOE.
power to When a male slave, with the permission of his master,
hu wife; liO'S married a free woman,, or the slave of another, he can
neither be compelled to repudiate her, nor can he he pre-
vented from doing so. When, again, a man has married
female slave, though the eontract is a real
own slave, marrioge, and not the mere legalizing of sexual intercourse,
still the power to separate them is in the hands of the
llow the master,*" and ho may exercise it without the uso of the
iw word tuUk, or repudiation, as, for example, by saying, “ I
ciscd. ijave eancclled your contract,” or by ordering one of them
Effect of ^thdraw from the other. But whether such an oxpres-
lt86X6rClS0
when with- sion would have all the effect of a Uil&k is a question on
out the uiio which there is a difference of opinion, some answering it
tuM. in the affirmative — so that, according to them, if it W'cro
repeated twice, with an intervening revocation, the woman
would bo prohibited to her husband until she were first
married to another — while others maintain that the expres-
sion would be a cancellation of the marriage, and this
opinion seems to bo more in accordance with the general
principles of, the law. If her husband should repudiate
her, and she is then sold by her master, she must complete
the iMtd of repudiation. But must the seller subject her to
any further purification than this uldut ? This is a question
that has been answered both in the affirmative and the
negative, but the latter answer is most correct, because she
> has been already purified by the icldut, which is sufficient.
Section Second.
Senile Marriage, or the Marriage of Fctmle Slaves hy
Right of Property.
OF two This is of two kinds,* according as the right is to the
kinds. person or to the usufruct of the slave.
1. Where When the right is in the person. There is no limit
the right to the number of woifien with whom a man may law-
person. fully have sexual* intercourse by virtue of this right. He
may also be the owner at the same time of a woman
He does not seem to have any such powers under the Hantfeea
codo. ’ « * , ,
8EBVILE MABBIAOK.
53
and her mother ; but, when ho has once had intercourse
with either of them, the otlver is prohibited to him.
Further, he may bo the owner of a woman and her sister
at the same time ; but, when he has once had intercourse
with either of them, the other is prohibited to him until
he parts with his property in the first. When he has
done this, the second is lawful to him. So, also, it is
lawful for a son to bo the owner of a slave who has been
enjoyed by his father, or for a father to be the owner of a
slave who has been enjoyed by his son ; but neither can
lawfully have sexual intercourse with one who has ever
been enjoyed by the other.
When a master has given liis female slave in marriage, A married
she is prohibited to him until a legal sepoi’atiou has been giavo is
made between her and her husband, and she has fulfilled
her iddut, if liable to observe one. Nor can the master master till
cancel her marriage, otherwise than by selling her, which
he is at liberty to do, when the seller will have an option, from her
and may cancel it if he please. In like manner, it is ''“stand,
unlawful for him to look at any part of her’ person that
may not bo soon by others as well as a proprietor.
Further, it is unlawful for a man to have sexual inter- an/stevo
course, by virtue of a right of property, with any woman who
Avhom ho holds in joint oAvuership with another. patt-wvner ;
It is not lawful for the purchaser of a female slave to and to a
have connection with her until she has undergone
usual purification.'^ And if the Blave*is mamed, and he has undcr-
has once given his sanction to the marriage, ho has no 1^”,° ^n* *^*'
power after that to cancel it. So, also, if ho were aware
of her being married, and made no objection, ho is pre- the put^
eluded from cancelling the marriage, or having connection
with the woman, until she has been regularly separated marriage
from her husband, and has completed her iddut, if liable **®
_ ■A.ssii'*’ SI ! • lias once
to observe one. But if he does not allow the marriage, sanctionc;!.
there is no necessity for an and purification is
suflicient to legalize his connection with her.
" Tliat is, till after one of her monthly courses, or the lapse of
forty-live days from the dato of tho purchase, provided she has
jrrived at puberty. — 7m. D., p.*130. ,
54
MARRIAGE.
Married
women
may be
purchased
from ene-
mies.
Purifica-
tion neces-
sary after
every ac-
quisition of
a female
slave.
It is lawful to purchase from enemies their married
women, and also their daughters, an^ from schismaticks
whatever they may have captured from enemies.
Every one who has become the proprietor of a female
slave, in any of the ways by which property may bo
acquired, is prohibited from having sexual intercourse with
her until she has been purified by an occurrence of her
courses. And if there is any delay in their appearance,
when the woman is of the proper age, she must observe
an iddnt of forty-five days. But there is no necessity for
this if, at the time of his acquiring the right to her, the
courses were actually on her, further than that he must
wait for their completion. So, also, if she belonged to a
just person, who informed him that she was purified, or if
she belonged to a woman, or is an ayesmhy that is, one
who has despaired of offspring, or is pregnant, none of the
precautions would bo necessary, except that in the last
case their omission is accounted abominable.
When it is When a^man who is the owner of a female slave
emancipates her, he may lawfully enter into a contract of
contract of marrifigo with her, and proceed to connubial intercourse
preceded without subjecting her to any purification, though
'by cmanci- iu this caso also it were better to do so. But if a man
pation. emancipate a female slave after he has had con-
nection Avith her, it is not lawful for another to enter into a
• contract of marriage with her until she has observed an idchit,
which, in this case, is three months, unless the emancipation
were preceded by some toohrs or intermenstrual periods. •
Where the II. Where the right is to the usufruct of the woman,
rhfusu-^*^ This involves a consideration of its form, or how the right
fruct. may be conferred; and its laws, or the rules by which
How the its exercise is regulated. And first as to its form or
iTi:iy*bc^ how tlio right is conferred. This is done by saying, ‘‘ I
canferred. have made it lawful for^you to have connection with her,”
or “ I have given you the legal right to have connection
with her ” — and\ho right cannot be conferred by the word
areeut or commodate loan. But whether the word ibahut,
lAUimYLyj people of error. ,
Botli expression^ contain inflections of the word huKu.
SERVILE MARRIAGE.
55
which signifies to permit, is sufiicient, is a question on
which there are different opinioijs — of which, however, the
opinion which is in 'favour of its legal sufficiency is that
which is best supported by traditional authority. With
regard, again, to the words touhiUokii, (I have given to
thee,) to have connection with her, siirvwurihtoku, (I have
authorised thee), and imdluktoku, (I have conferred on
thee) those who think that the word ihaJmt or permission
is sufiicient maintain the safilciency of these also. But
this is denied by those who insist that no form of
expression can bo lawfully employed for the purpose except
some inflection of the word tuhlecL
Whether the expressions by Avhich this rigJit is con- ^>onbt as
stituted are in the nature of a contract, or of a transfer of ^Iro of”thc
usufruct, is a question on which there is a difference • j.
opinion among our doctors, founded on a respect for female is a oon-
chastity arising from an idea that sexual enjoyment is
unlawful under any other conditions than contract or a usufruct,
right of property ; but perhaps the more correct of the two
opinions is the last, or that which makes it* a transfer of
usufruct. Wliethcr, again, a female slave can bo legalized
to a male slave, is also a point on whicJi there arc two
traditions. According to one of these, which is supported
by the consideration that the legalization is a kind of grant
or transfer, of which a slave can hardly be the recipient, it
is forbidden ; while according to the other, which is sup-
ported by the consideration . that it is only a permission,
gf which a slave is quite capable, it is lawful when a
particular female is indicated. Moreover, the last of the
two traditions seems to bo most agreeable to the general
principles of the law.
A miwdithhitrah^^ and an oom-i-wiilucP'^ maybe
ized like an absolute slave. But when a man is only the moom-i-
partial owner of a slave, and she surrenders or legalizes
herself as to the other part, the transaction is not lawful ; jeetofthis
^ ^ traiisac-
An increased infinitive of AmZ/m. * tion.
** A female slave with whom her master lias entered into , an
agreement of tudheer, or emancipation at his death.
Mother of a cliild to liesi master.
66
MAIIBIAGE.
Laws or
rules.
The rip^ht
is strictly
limited by
the mean-
ing of tlio
language
in which it
is con-
IciTcd.
The child
gf n wo-
man duly
logoi ized
is free.
Inter-
course not
subject to
the same
restraint
us under a
contract.
though if she were the joint property of several owners, and
they all comhined in legalizing her, it has been said that tho
transaction would be quite lawful. The difference between
tho two eases is that a woman cannot legalize herself. .
Next as to tlie laws or rules by which tho exercise of
tho right is regulated.
First. The right is limited to what is strictly within
tho meaning of the language in which the pemission is
granted, or what the circumstances of the case demon-
strate was clearly intended to be included. Thus, if the
permission was to loss, the licence is confined to kissing.
So, also, if the permission is to touch, sexual intercourse
is not included ; but a permission of the latter compre-
hends all other kinds of dalliance. If the permission is
to employ the woman in service, she cannot be used for
sexual enjoyment ; and if the permission be for sexual
enjoyment, she cannot be employed in service. If she is
enjoyed without having been duly legalized, tho man who
has had intercourse with her is a sinner, and is bound to
make compensation to her owner, and any child which
may be the fruit of such intercourse is a slave and such
owner’s property.
Second. Tho child of a female slave who has been duly
legalized is free ; and if freedom is expressly stipulated for
when tho word ibahtt or permission is employed, tho child
is free in that case also, without any manner of doubt, and
there is no w'ay of proceeding against the father ; but in
the absence of any such condition it has been said that the
father is bound to ransom the child by paying its value.'
It is, how'ever, maintained, on the other hand, that ho is
under no such obligation, and this is the better founded of
the tw'o opinions. ♦
Third. There is no objection to sexual intercourse with
a slave though there is another person in the same apart-
ment with her; nor to the sleeping between two slaves,
though this is abominable in the case of free women. It
is also abominable to have connection with a fajirah, or
woman of bad character, or with one who was born of
fornication.
SKRVILE MABBIAGE.
67
Section Third.*^
OflsteelaiU^
Tlus requires the explanation of two matters. First,
how it is constituted ; and, second, the laws relating to
the oom-i-wuhid,' ov mother of a child.
I. Isteelad is constituted by a female slave bearing a Constitn-
child to her master while she is his property ; for if a man
should beget a child on tho slave of another, she would not in^a child
become his oom-i-wuhul, though ho should aftenvards
become her proprietor. If a man should begot a child hi* pro-
on a free woman, and subsequently become her proprietor,
she would be his oom-i-wuliul, according to the Sheikh / but
not so according to a report of Ebn-i-Warid. But if a
man should have corihection with a slave impledged to
him, and she should become pregnant in consequence, sho
would bo his oom-i-wtdud, and the result would bo the
same if a zimince, or infidel subject, should have connec-
tion with his female slave, and pregnancy should ensue ;
but here, if the slave bo converted to the Mussulman reli-
gion, tho master would be obliged to consent to her sale.
II. Tho laws relating to an oom-i-ictdtid.
First. An oom-i-mdud is a slave, and is not enfran- Oom-i-wit-
chised by the death of her master, but out of tho share of
her child in his estate.^’ The master, however, is not at l>y mere
liberty to sell her so long as her child survives, except only hermasicrj
oh account of her own price, when ho has bought her on
credit, and has no other means of defraying tho debt.
But if tho child should die, the mother returns to a state
of absolute slavery, and may be lawfully sold, or otherwise
disposed of at the pleasure of her master.
” This short section has been introduced here from p. 368 of tho
original.
" The word means literally to claim a child {D., p. 377), but hero
it is employed in a somewhat different sense.
” According to tho Hanifites she becomes absolutely free at tho
dentil of her master. J)., p. 37tA
58
MARRIAGE!.
but is so Second. When her master has died, leaving her child
child’s surviving, she is entitled to emancipation out of the share
share m of the child in the master’s property, and if the share bo in-
is estate, gjjQ jg emancipated pro tanto, or as far as
the share will go, and to work out the remainder of her
value by emancipatory labour.
A bequest Third. When the master has made a bequest to his
T-wul^hy though some of our doctors maintain that
her master, the legacy is to be paid to her, and she is still to be eman-
plicd tocher out of the portion of the child, the better opinion
enfran- seems to be that the legacy is to be first applied to her
bcfOTcT^”*' emancipation, and that it is only the balance, if the legacy
coming on should 1)6 insuflScient for the purpose, that can bo taken
her out of tho portion of the child.
The fine Fourth. When an ooin4-wvlnd has committed an
^lUon ?or ' compensation due on account of it
offences attaches to her person, which her master is obliged to
byh™r*^at- amount IS a question on which there
taches to is a dififeroncc of opinion, some saying that it is tho loss of
her person, sums, \iz. the irishy or established compensation of
tho offence, and her value, wliilo others maintain, with
more appearance of truth, that it is tho msh, whatever that
may be. He may, however, surrender tho slave herself, if
ho please, to the person against whom the offence has been
committed. And it is reported as from Ahee Abdoollah, on
. whom bo peace, that the master is personally liable for
trespasses by her on the rights of individuals, but that if it
bo against a jimauty or collection of persons, he has an
option, and may either ransom her or surrender her to tho
persons injured, or their heirs, in proportion to the extent
of the offence.
( 69 )
CHAPTER IV.
OF CAUSES FOB WHICH MABBIAOE MAY BE CANCELLED.
Section First.
Personal Blemishes in Man and Woman.
The personal blemishes of a man are three in number ; picmishca
ini. IT.
Insanity, Eunuchism and Impotence.
The Insanity of a husband empowers his wife to cancel Inaanit.v.
their marriage, whether the insanity be continued or occa-
sional, and so also when it is supervenient or, occurs after
the contract, and whether before or subsequent to connubial
intercourse. With regard to supeiwenient insanity, it has
sometimes been made a condition of its being a cause for
the cancellation of marriage, that the man should not havo
understanding suiiicicnt to recognize the stated times of
prayer, but the soundness of this opinion is at least liable
to doubt.
Eunuchism is the loss of both the testicles, and in- Eunneh-
chides in its meaning their actual destruction by castration. .
This is a cause for tho cancellation of marriage when it
has occurred before tho conb'act ; and oven when it is
supervenient to it, according to some of our doctors ; but
this opinion is not to be relied on.
Impotence^ is a cause for the cancellation of marriage, impotence,
though it should not occur till aftor the contract, provided,
however, in this case, that tho man has had no sexual inter-
• •
' Inin, A definition of the term is given in the text, which may
be dispensed with, as its {neaning is sufficiently expressed by tlio
Jinglish wcjrd. ’ » • ^
60
MABBIAQE.
Blemishes
in a wo-
man.
Insanity.
*Joozam,
Burs.
Kurn,
Ifzao,
Urj.
coarse either with his wife or another woman ; for if this
has occurred, though onl^ once with his wife, or if, while
impotent with regard to her, he has had conn^tion with
another woman, the wife has no option according to the
most approved doctrine. So, also, if he has had connec-
tion with his wife against natare,^ though impotent in the
natural way, she has no power to cancel their marriage.
Whether, again, juh or the removal of the penis only be a
sufficient cause for cancellation, is a point on which there
is a difference of opinion; hut, according to the opinion
which is the more agreeable to the general principles of
the law, it does enable the wife to cancel her marriage,
provided, however, that so much of the stump has not been
left as is sufficient for coition.
A man cannot bo rejected for any other cause than one
of these above mentioned.
The blemishes of a woman are seven in number : in-
sanity, joozam, htirs, hmi, ifzao, blindness and vrj.
Insanity is a total derangement of the intellect, and an
option is not established by slight abcn'ations which easily
subside, or by stupors, though of frequent occureence.
But if these are confirmed or permanent the option is
established. Joozam^ is a disorder in which there is a
drying up, or withering of the members, and a falling
away of the flesh. Burs* is a whiteness which appears on
the surface of the body from an excess of the humours ;
but if there is any room for doubt as to the symptoms,
this docs not give the power of cancellation. Kum is
sometimes described as a fleshy protuberance, and some-
times as a bone growing in the womb, which prevents
coition. Ifzao is the two passages of nature becoming one.*
With regard to Urj there is some doubt; but it seems
more agreeable to traditional authority to include it among
female blemishes when it amounts to actual lameness.
* There are two traditions with regard to this practice, and tliongh
according to the more generally received of these it is not unlawful,
yet it is deemed to be utterly abominable. — Shuraya, p. 2G0.
* Black and wliite leprosy according ^ Im. D., p. 83.
* Seeant^, note, p.,30. , ,
CAUSES FOB WHICH MABBIAOE HAY BE CANCELIiED. 61
Rutuk!^ has been placed by some among tho blemishes of RuttA.
a woman which give a right to cancel marriage, and when
it has prevented coition from tho beginning, there seems
to bo ground for this opinion, on account of the privation
of sexual enjoyment, — that is, when it cannot bo removed
or has resisted tho usual remedies.
A woman cannot be rejected for any other than the
seven blemishes above mentioned.
Section Second.
Laivs relating to Blemisim.
First. Blemishes in a woman that existed before tho A blemish
contract afford a cause for the cancellation of marriage ; man, bo
but it cannot be cancelled on account of any that occur
after tho contract and connubial intercourse. With regard, ktion,
again, to those that occur after tho contract but
such intercourse, there is room for doubt ; but, according to the time of
tho opinion that is best supported by traditional authority,
they ore not a sufficient cause for cancellation^ and this is
corroborated by tho consideration that at tho time of tho
contract it was free from objection.
Second. The option of cancellation must in all cases be The right
exercised immediately, for if a blemish be known to man
or woman, and they do not hasten to cancel tho contract, exercised
it becomes binding upon them. And tho rule is the si^me
in the case of option on account of tudlees or deception.
, Third. Cancellation on account of a blemish is not Cancella-
tuUk or repudiation. Hence, it does not give occasion for btemSi is
halving the dower, * and is not reckoned in making up the upt fepu-
number of three repudiations, i ’
Fourth. A man may lawfully exercise his right of“"^'*o«*
cancellation without the intervention of a judge. And a the
woman may do so also. True, that in establishing impo-
tonce a judge is required to fix the period allowed to tho except in
man in such cases to test his inability. But on the
' Female organs so narrow as only to allow a passage for the
urine— Johnson's Arab. Diet.
. * That m, in case of cancellation before coition.
62
MABBUOE.
expiration of the prescribed period, she can cancel the
marriage of herself whep no connubial intercourse has
taken place. ’’
astoble- F'ljth. Wlien there is a difference between the parties
nMh, (ic- as to the existence of the blemish, the word of the denier
nierswortl . , , »
preferred. IS to be received in the absence of proof.
How tlio Sixth. When a husband has cancelled his maniage for
right to one of the blemishes before described, and this is done
to be dc- before Consummation, the wife lias no right to dower ; but if
tcrmined jj; jg not jone till after consummation, she is entitled to the
lationofa full amount specified in her contract; for the right being
marnago. once established by coition, is so completely confirmed that
it cannot bo extinguished by cancellation. The husband,
however, has a right of recourse against the person by
whom ho was deceived. In like manner, if a wife should
cancel her maniago before consummation, she has no right,
to dower, except in the single case of impotence ; while if
she does not cancel it till after consummation, she is
entitled to the full sum specified in the contract. So also,
where the blemish for which the mamage has been can-
celled is the husband being an eunuch, the wife is equally
entitled to her full dower if coition has taken place.
•Special Seventh. Impotence is not established without the
husband’s acknowledgment before the judge, or proof of a
bltohment previous acknowledgment by him, or by his refusal to
ten™**° . swqar. If there is none of these, and the wife prefers a
claim on the ground of impotence, the word of the
husband is to be received when confirmed by his oath.
Some, however, contend that he should be placed standing
in cold water, and that if there is a contraction of the parts,
judgment should bo given according to his assertion, while
if they remain relaxed, judgment should be given in favour
of the woman. But no reliance is to be placed on this
experiment as any test. If impotence has been established
against the husband, and he subsequently alleges con-
nubial intorcoursa with his wife, credit is to be given to his
assertion when confirmed by his oath. And if he alleges
’ A c c o rding to the Hanifites, a decree of separation by the judge
seems to be necessary., 2).,p. 347. ' "
CAUSES FOB WHICH MABBUOE MAY BE CANCELLED. 63
that ho has had connection with other women, his word is
still to be received if accompanied by his oath. Bat
judgment should be’ given against him if ho refuse to
swear. Some, however, maintain that in this caso the oath
is to be tendered to tho wife, and the opinion is recom-
mended by tho usual coarse of procedure in cases of
refusal.
Eighth. When impotence has been established, and Course to
tho wife is patient, or declines to proceed in the matter,
nothing further is to be said ; but if she insists on bringing foro the
it before the judge, tho case is to bo postponed for a year
from tho day of her appeal to him, and if, in tho interval,
connubial intercourse takes place, or the husband has had
connection with another woman, the wife has no option ;
but if nothing of the kind has happened, she has a right
to cancel her marriage, and has a right to half tho dower.
Section Thhid.
Ttidlees,^ or Deception.
Whore a man has married a woman on condition of
her being free, and she proves to be a slave, ho has a right woman on
to cancel tho marriage, even though connubial intercourse
should have taken place. Some go further and say, that ing free,
the marriage is void; but tho first opinion is better
founded on traditional authority. If the marriage is riagcifslio
cancelled before coition, the woman has no right to dower ;
but if the cancellation docs not take place till after it has
occurred, her right to dower is fully established. Some
say, however, that tho dower named in tho contract is
extinguished, and that her master can claim only the
tenth if she wore a virgin, and half the tenth if she were
not so ; but the first opinion seems to bo more agreeable
to the gonoral principles of tho law. And the husband has
a right of recourse for a refund of whatever he may be
obliged to pay, against the person who j)iactiscd tho decep-
tion upon him. If that person were the master of the
Literally, “ concealment of faults.'
64
MAItnlAGE.
slave, some of our doctors are of opinion that the marriage
is valid, and tho \vife madfv free by virtue of his declaration,
if tho words of which ho made use were such as can fairly
be constracd to imply emaneijmtion, while if they cannot
bear that construction, she is not emancipated, but has no
right to dower. If the woman herself were tlio deceiver,
her master is entitled to compensation for tho enjoyment of
her person ,* but tho husband is entitled to a refund of it
as against tho woman herself if she should ever be emanci-
pated ; and if he has actually paid her the dower, he may
immediately recover whatever of it may bo still in her
hands, and proceed against her for tho remainder when she
has obtained her freedom.
And a When a woman has mamed a man on condition of his
hi^tho being free, and ho proves to bo a slave, she has power to
like power cancel her marriage before or after connubial intercourse ;
drentn- ^ hut if the marriage is cancelled before it, she has no right
stances, to Jowcr, while her right to it is fuUy established if the
cancellation docs not take place till after coition.
Amanwho When if man has contracted with another for his
contracts daughter on condition of her being the child of a free
withano- ° , »
therforhis woman, and it proves that her mother was a slave, some of
daughter doctors maintain that he has a right to cancel the
tion of her mamago ; and it would seem that ho has such an option
chUd of a when there was an cxiircss stipulation to that effect ; but
free wo- not SO, if the contract were in general terms. If he should
oinMU^o himself of his option, and cancel the marriage before
mainage if coition, the woman has no right to dower; but if the
to he The* cancellation does not take place till after coition, her right
child of a to dower is fully established, tho husband having at the
same time a right of recourse against the deceiver for a
refund of it, whether he' be the father of the damsel or
another person.
Every per- If a man should man’y his daughter to another as tho
Xom child of a free woman, and should send him, instead of her,
another jjis daughter by a slave, the husband may return her to
has been her father ; but if coition has taken place, he is liable for
^2^*^ her proper dower ; for which, however, he is entitled to a
his wife, refund ^m the father, who must also restore to him the
CAUSES FOB WHICU MABBUOE MAY BE CANCELLED. 65
daughter whom he had actually married. So also may may return
every one act to whom another than his own wife has been ilJbie for*
brought, whom he supposes to bo his wife, whether the her proper
woman be higher or lower in degree than the person whom
he has married. takesploce.
When a man has married a woman stipulating for her Amanwho
being a virgin, and finds that she is not so, ho has no
. , .1 . , , . . . woman on
power to cancel the marriage, because the marks of virginity condition
may have been destroyed by some concealed cause other than ^ .
coition. But ho is entitled to a deduction from the dower vir^n, has
equivalent to the difference between the dower of a virgin
and one who is not so. Some, however, maintain that the marriage if
amount to bo deducted is a sixth of the dower, but this is ^beSmr-
erroneous. wise.
When a man has taken a woman in moot/i, or by tern- a tompo-
porary marriage, and finds that she is a Kitaleeah, ho
has no power to cancel the marriage, without giving up his not
right to her during the time or period for which the marriage
has been contracted ; nor can he deduct any part of the the woman
dower. And oven though the contract were a’ permanent
one, the result would bo the same according.to one of two in tho
opinions on the subject. If, indeed, there wore a positive nn’^x^ss
condition that the woman should bo a Moodimah, there condition,
is no doubt that he would have the power of cancelling tho
marriage should she prove to bo of a different religion.
Wlicn two men have married two different women, and Qiso of
tho wife of each has been brought to tho other, and he has ti,e
hud connection with her, each of the women is entitled to wives of
her proper dower as against the man who has had such bron^it to
connection with her, and must bo restored to her own them on
husband, who is liable to her for tho dower specified in her of*thew
contract; but it is unlawful for’ him to have connubial “‘“"“S®-
intercourse with her until the expiration of her iddut on
account of tho first connection. If both the women should
die during tho iddut, or tho husbands should die, each of
tho men would inherit to his qwn wife,, and each of the
women inherit to her own husband.
In every place in which we have judged tho contract to
bo void, tho wife is entitled, when connubial intercourse is void ab
PAST n. ’ F
66
MABBIAGE.
iniiiOf the
wife is
entitled to
the proper
dower ;
and wher-
ever it is
valid, but
cancelled,
she is en-
titled to
the dower
specified
in it.
has taken place, to her proper dower, and not to the dower
appointed for her by the 'contract; ,and in every place in
which we have judged the contract to be valid, the Avifo is
entitled, on cancellation of her marriage, to the full dower
specified. It is maintained by some of our doctors that if
the marriage is cancelled on account of a blemish ante-
cedent to coition, the proper dower is due, whether the
blemish were in existence before the contract, or did not
occur till after it ; but the first opinion is more agreeable to
the general principles of the law.
( 67 )
CHAPTER V,
Of Muhb OB Dowee.
. Section Fibst.
Valid Dower.
Anything whatever which is capable of being legally Anything
acquired, whether it he substance or usufruct, is a valid
subject of dower ; and marriage may be lawfully contracted appropri-
for the usufruct of a freeman, that is, for service to be
rendered by him in the teaching of a trade, or instruction subject of
in a chapter of the Koran, or any other lawful business, or
even for the personal service of tho husband himself for a
stated period, although some of oui’ doctors have prohibited
the latter on the authority of a report, which, however, is
but weakly authenticated, and further, falls short of tho
prohibitive sense which these doctors have put upon it.
If two simmees, or infidel subjects, should contract Things nn-
marriago together for wine, or a hog, the contract would
be valid, because these are things which may bo lawfully mans ipay
acquired by them. But if both or either of them should j’cet of
embrace tho faith before possession has boon taken of tlio >l“wcr
dower, the husband must deliven its value, as the thing rimmr f .
itself is incapable of being tho property of a believer. And
it makes no difference whether tho subject of the dower
were specific, or engaged for in general terms, and left on
the responsibility of the husband. If both of tho parties
to a contract in which wine or a hog 'is tho dower, be
MoosUma, or professors of the faith, or tho husband only
be a Mooslim, some doctors have pronounced such a
qpntract tq bo null, and otlfors have supported its validity.
68
MABBIAGE.
The
amount of
decreeing the muhr-ul-mithl,^ or proper dower to the wife,
in the event of coition. According to a third opinion, eho
is to receive the estimated value of the wine or hog ; but
the second opinion is most generally approved.
There are no bounds to the quantity or value of the
(lower is dowor, which is left entirely to tho will of the husband and
In^he'wlll ^ ®®P8'Wo* of appreciation, that is, not
of the par* totally destitute of value, like a single grain of wheat, for
t'®*- example.® Some of our doctors have declared that a dower
cannot legally exceed the muhr-ul-soonnut, or tho dowor
bestowed by the Prophet on his wives, and have declared
that any excess over that amount must bo returned to tho
husband ; but this opinion is not to be relied upon.
It is sufficient in the assignment of dowor that tho
article which is tho subject of it bo seen, if produced,
although of unknow’u measure or weight, like a heap of
grain, for instance, or a bit of gold; and it is lawful to
marry two or more women for one dower, which must in
that case, p,ccordiug to some of our doctors, bo divided
equally among them, or, according to others, in proportion
to their proper dowers, — which latter opinion is more
agreeable to the general" principles of law.
If a man should marry a woman for a servant or slave,
in general terms, without his being soon or described, a
nssicned in slave of medium value must be delivered to her ; and the
te^rin™ono applies to a beyt, or house, stipulated for in
ofinediom general terms, founded on a report by Aly Ehn Ally
be deli- Hiiinzcin ; as also to a dar^ or mansion, as recorded Jby
vered. lien Ahy Ameer from some of our doctors, quoting the
authority of Aly al Husn,^ on whom be peace.
Dower of If a man should marry a woman “according to the
is Book of God, and tho soonnut, or traditions, of his
hem. Prophet,” without any specification of dower, she is to
receive, in that case, five hundred dirhems. If, again, a
dower is specified for the woman, and also something for
If the sub-
ject of
dower bo
seen, its
nrnouut
need not
bo. nsccr-
tained.
When n
slave or
iiousc is
‘ Usually pronounced muhr-i-misl in India.
’ According to the Ilanifitcs, tho lowest amount of dower is ten
dirhems. — D., p. 02.
® The Imam Moosey Reza, * ^ ^
DOWER.
69
her father, the husband is legally bound only for the first,
and the stipulation in favour of the father is of no avail.
It is otherwise where a husband endows his wife with a
dower, and stipulates that something is to be given out
of it to her father; for in that case both the dower and
the stipulation are valid, in opposition to the former
example.
It is indispensable in marriage contracts that the Tho dower
dower be specified in such a manner as to remove all ™
doubt and uncertainty. Thus, if the dower agreed upon as to ro-
be instruction in a chapter of tho Koran, tho chapter must
be specified ; and if it is left in general terms the dower tainty.
mentioned is invalid, and tho woman must receive her
proper dower in the event of consummation. Whether,
also, tho mode of reading ^ must bo specified, is a question
which some have answered in the affirmative, and others
maintain that it is not necessary, but that the husband
must instruct her in a manner that is lawful, — which last
opinion appears to be tho best founded. Should the wife
direct him to instruct another in her room) this is not
incumbent upon him, as not included in tho stipulation.
If a husband should assign as tho dower of his wife If a thinp
tho teaching her a business in which ho is not expert, or
a chapter of tho Koran of which he is ignorant, such dower proves to
is nevertheless valid, for the engagement is established on
tho husband's responsibility ; and if he is unable to perform tl»c pro-
it himself, he is bound to pay the hire of such instruction,
If, again, he assign to her as dower a vessel said to contain
vinegar, and it afterwards appears that tho contents arc given
wine, some of our doctors have maintained that she is instead,
entitled to have tho value of tho wine as if it were lawful,
and others a similar quantity of vinegar, which latter
appears to bo tho better opinion. In like manner, should
ho assign a particular slave, and if it afterwards appears
that tho person is free, or the property of another, tho
* This case lias a reference to the seven dilferent inodes or tones
prescribed for reading the Korun in the science of reading the sacred
book, which is considered, in Ai'abia, a most important branch of
study. •
• •
70
MARBIAGE.
Case of a
private
and public
assign-
ment of
dower.
The hus-
bdnd is
respon-
sible for
the dower
unblem-
ished.
woman is to receive a slave of like valne as the person
mentioned. And if ho should marry her for one dower
privately and another openly and in public, the first is
her dower.®
The husband is responsible for the dower. If, then,
it should perish before delivery, he must make good its
value at the time of its loss, according to the most com-
monly received doctrine among us ; and if it is found to
bo blemished, the wife may return it on account of tho
defect. Hut if it should bo blemished after tho contract.
it has been said that she has an option, and may take
cither the thing itself, blemished as it is, or its value. It
wore better, however, to say that she has no title to claim
its value, and can only take the thing itself, with a com-
pensation for the blemish.
A wife A woman may refuse to surrender her person till she
to*su^n^ has received delivery of her dower, whether tho husband
dcr herself bo wealthy or in straitened circumstances. But whether
dolw'^is marriage has been consummated,
paid. is a question that has been answ’ered both in tho afiirmativo
and tlio negative. Tho latter opinion, however, is tho
more conformable to tho general principles of law, because
* fruition is a right in the husband to which ho is entitled
by the contract.
Modem- Moderation in tho amount of tho dow'or is commend-
exceed the muhr-vl-soonnut, or dower of tho
dower traditions, (five hundred dirhems,) is abominable. As it
laudable, ^ j^g^jand to have connubial intercourse wiUi
his wife till he has first paid her tho dower, or at least
some part of it, or has given her something else as a
present or gift. ,
Section Second.
Tufu'eez, or Gratuitous Surrender.
TufwKz This is of two kinds, Tufweez-ool-BoozA, or surrender
of the person,® and Tufweez-ool-muhr, or surrender of the
' See Diijett, note on p. 118 .
* Literally, arvum geriitale nrnUeris.
DOWEB.
71
dower. By the first is to be understood a contract, in i. When
which no mention whatever is made of dower, as if an
111 rr-iii made oi
ttgeiit should say, i have married thee to such an one,” dower in
or the woman herself should say, “ I have contracted myself
in marriage to thoo,” the man saying, “ I have consented.”
This species of contract includes the following cases : —
First. The mention of dower is by no means a con- A present
dition of validity in a contract of marriage. If, therefore,
a person should many a woman without any mention of the woman
dower, or with an express condition that there shall
none, the contract would bo valid. And if ho should coition, or
divorce her before consummation, she would have no right aowerir*^
to dower, though entitled to a mootut, or present, whether she w
she bo free or a slave. But if divorced after consumina- aftCT™.**
tion, she must receive her proper dower, having no claim
to a present in that case. Further, should one of the
parties die previous to coition and before settlement of
the dower, neither dower nor a present can bo claimed in
such a case ; and it is to be observed that the proper
dower is not established in any case by virtue of the con-
tract alone, but is determined by its consummation.
Second. The muhr viithl,’’ or proper dower of a woman. How tlio
is regulated by the nobility of her birth, the beauty of her and
person, and tho custom of her female relatives, provided present are
tliat it does not exceed tho dower of the soonnut or five- ^nlateT
hundred dirhems. And the mootdt or present is regulated
by the condition and circumstances of the husband. Thus *
a rich man is to present his wife with a quadruped, a rich
^rcss, or ten deenars ; a man of tho middle class with five
deenars, or a dress of middling value ; and a poor man
with one deenar, a ring, or the like. Further, no woman
is entitled to a present except a ^oman for whom no dower
has been assigned, and who has been divorced before
consummation.
Third. If tho parties agi'ee, subsequent to their Dower
contract of marriage, upon tho settlement of a dower,
it is legal and valid, for tho right is with them, whether after mw-
riage.
t
^ Usually pronounced mUl in India.
72
MABBUOE.
tlio amount agreed upon is equivalent to the proper dower,
or is more or less than it, {md whether the parties, or one
of them, ho acquainted with the proper dower or ignorant
thereof, for the settlement of the dower rested with them
. at the first, and it is equally lawful to the end.
with a Fourth. If a man mai*ry a slave and then purchase her,
slave in- the marriage is invalidated," and she has no right either
validated , .
by her to dower 01' a present.
husband's purchasing her, and she
has no right to dower.
Tufweez Fifth. Tufivccz, or voluntary surrender, is established
to*tL'cnsc woman who is adult and discreet, and
women ia not valid if made hy a child or even a full-p'own woman
adult and ’ ^ O'" faoilo disposition. If, again, a guardian
discreet, should contract his ward in mamage for less than her
proper dower, or without any mention of dower, though
the contract would be valid the woman would be entitled
to her proper dower in virtue of the contract alone. But
this decision is liable to doubt on the principle that a
guardian is vested with powers to act as ho thinks best for
his ward, and may therefore bo trusted with the tvfwcez
or suiTender of her person, in confidence that it is for her
benefit in the particular instance ; and this decision appears
to be the most proper. Supposing, however, the first to
be con’ect, and that the husband divorces his wife previous
to coition, she would on that supposition bo entitled to
• half her proper dower ; whilst, according to the doctrine
that wo prefer she would bo entitled to no more than a
present. Further, it is lawful for a master to surrender
his slave without any mention of dower, as he has an
exclusive right to the dower.
pseofa Sixth. When a master has contracted his slave in
sl^e being without any mention of dower, and has sub-
wShout sequently sold her, the future settlement of dower rests
xpccifica- in that case with the husband and the second master,
dower^and ratify tho jnarriage, and ho alone is entitled to
being llicn
* According to llio Hanifites, marriage is invalidated by either
party bceoming the proprietor of the other. — D., p. 203, and see ante,
p. m.
DOWEE.
73
the dower without any participation of the first. But if
her first master should emancipate her previous to tho
consummation of her marriage, and she should approve
or bo content to abide by the contract, she would herself
alone bo entitled to the dower.
With regard to tho second kind of surrender, or that Second
of tho dower, which is that kind of contract in which the
dower is mentioned in general terms and tho amount left where the
to bo fixed by one of the spouses. When tho husband is feft to bo
the appointed judge, ho is not restricted on tho side of snbse-
cither more or less, and may lawfully fix anything that ho 2x^1?^
pleases ; but when the amount is left to tho judgment of
tho wife, though she is in nowise restricted on tho side
of less she is limited on the side of more, and cannot
lawfully exceed the dower of tho soomut, or five hundred
dirhem. Should the husband divorce his wife before
coition, and also before the settlement of tho dower, the
person to whoso judgment the' matter was loft must
immediately fix the amount, and the wife is entitled to tho
half of it ; provided that when tho wife is the party invested
with the power, whatever she awards must not exceed
tho dower of the soonimt. If tho judge or referee should
die before fixing tho amount, and previous to coition, some
of our doctors have said that the dower is cancelled, and
tho wife entitled only to a mootdt or present, while others
insist that she has no right to either ; but the first opinion ^
is supported by express tradition.
Section Thied.
'llie Laws of Dower.
These are comprehended in the following cases : —
First. When a marriage has been consummated before
delivery of the dow'cr, the right to it is by no means can-
celled by tho consummation, but remains a debt against
the husband, for which ho is responsible, however long or
short may bo tho delay in its payment, and whether it bo
demanded or not. There is indeed a report tho other way,
but that has been set aside, or abandoned.
Right to
dower not
cancelled
by consum-
mation, hut
husband
always re-
sponsible
for it till
actual
payment.
74
MARRIAGE.
Consum- It is to be observed that by consummation, as a means
what°’ establishing a right to (jower, is to bo understood actual
coition, either naturally,' or against nature,® and the right
is by no means established by mere retirement, as some of
our doctors have maintained,^® the first opinion being better
supported by traditional authority.
When no Second. When no dower has been named in the con-
been sped- husband has given something to his wife,
fied, a gift and then consummates the marriage, it has been said that
summation thing BO given previous to coition is to be accounted
must be tlic dower, and that the wife has no right to demand
be the anything more alter the coition, unless it was previously
dower should consist of something else,
otherwise founded on an analogical exposition of a report, and
stipnlatcil. ig supported by the well-knomi opinion of our doctors.
Wife enti- 77ttrd. When a man has divorced his wife before con-
summation of their marriage she is entitled to half the
if divorced stipulated dower, and if the whole were paid in advance,
tion^iid'if is entitled to a refund of half of it if still in existence,
the whole or half of b similar to it if the thing itself have perished,
pdd^must similar cannot be procured. If
return there should bo any difference between its value at the
or its time of contract and at the time of taking possession, the
value. mfe is bound only for the lowest of the two values. If,
again, the identical substance remain in her possession,
, but it has become injured in some of its qualities, as, for
instance, if the dower were an animal which has become
blind of an eye, or a slave who has forgotten the trade in
which he was instructed, the husband is in this case
entitled to half the value, and cannot be compelled to take
the thing itself, although this decision is liable to some
doubt. If, however, the diminution of value should arise
merely from a change in the price, he is entitled to no more
than half of the article itself, as ho is also, on the other
hand, entitled to the half of it if an increase in its value
should take place from a rise in the market price, because
• See ante, note, p. CO.
And as is the doctrine of tho Hanifite sect. — D., p. 00.
UOW£B.
76
no reference can bo made to value so long as the actual
substance remains unchanged. “Where, again, an essential
increase of the substance has taken place, as by natural
growth in the case of a young animal, or by an addition of
fat in the case of a lean one, ho is entitled only to half of
the original value without the increase, and the wife cannot
bo compelled to make over half of the thing in its improved
condition, according to the best founded opinion. Further,
any produce of the original dower, such as the ndlk or
young of an animal, is the exclusive property of the wife,
and the husband is entitled to no more than bnlf of what
was si)ccificd in the contract. But if ho had endowed her
with a pregnant animal as her dower, half of both the
animal and its offspring would be his ; while if instruction
in a trade were the dower, and ho had divorced her before
consummation, she would be entitled to half the hire of
instruction, and if he had already instructed her previous
to the divorce, ho would bo entitled to a refund of half the
hire.
Fourth. If a woman exonerate her husbaiid from the Effect of
dower, and ho then divorces her before consummation, he
has a claim against her for half the dower; and in like wife of the
manner if ho should enter into a khoold with her, or
bargain for release from the marriage tie, in exchange for
the whole dower, he would be entitled to have recoureo
against her for a refund of half of it, if ho should divorce .
her before consummation.
, Fifth. Where a man has given liis wife in exchange or a com-
for her dower a- fugitive slave, and something besides, and
then divorces her previous to coition, ho has a claim dower for
against her for a refund of half the original dower specified S'***^”®
in the contract, and not of that subsequently exchanged
for it. In like manner, if he should commute it for
any other article, either moveable or immoveable, restitu-
tion, in the event of divorce, takes place only in the original
dower, and not in the article exchanged for it.
Sixth. When a mooduhbiirah has been assigned as Case of a
dower, and the wife is divorced (before consummation), the
slave becomes their joint property in equal shares, and as
® • dower.
76
MARRIAGE.
Unlawful
stipula-
tions in
marria^re
are void,
and leave
the dower
unaffected.
Kffcct of
stipulation
for an in-»
crease of
dower if
the wife is
taken from
her own
city.
A woman
entitled to
a second
must be set free on the husband’s death. But some insist
that the ttidhecr^ is cancelled by the assignment of the
slave as dower, in the same way as a legacy, which, like it,
takes eifect only on the death of the testator, is cancelled
by any disposal of its snbjcct during his life ; and this
seems more agreeable to tlio general principles of law.
Seventh, ^Vlien anything is stipulated for in a contract
of marriage which is contrary to law, as, for cxam 2 )lc, that
tlio bnsband shall not marry another wife during the life-
time of the party with whom the contract is made, nor
privately entertain a woman as his concubine, the condition
is void, and the contract valid together w'ith the dower.
In like manner, if the husband should stipulate for tbo
payment of the dower at a certain term, and that in the
event of failure the contract shall bo null, both contract
and dower arc binding and the condition void. If, on the
other hand, it is stqmlatcd that he shall not deprive her
of her virginity, the condition is valid and binding, and
should the wife afterwards consent to connubial inter-
course, that also would be lawful on account of the general
terms of the tradition. Some doctors have limited the
obligation of fulfilling this condition to cases of temporary
marriage alone, but the doctrine appears to be totally
groundless.
Ehjlith. If it be stipulated in a contract of mamago
that the husband shall not take away his wife from her
own city, it has been said that such a condition is binding,
and there is a tradition to that effect. Should he further
stipulate a certain amount of dower in the event of his
taking her away to his own country, and somewhat
less if she does not accompany him, and if after this
he attempts to carry her away to an infidel city, she is not
bound to comply, and is nevciiheless entitled to the higher
amount of dower. If, on tho other hand, the removal is
to a Mussulman city, the condition of tho contract is bind-
ing on her ; though this is liable to some doubt.
Ninth. If a person divorces his wife, and remarries
" See ante, note, p. 66.
. DOWER.
77
her during the iddiitf and again divorces her before coition, dower if
she is entitled to half , the dower.^ Gifroflmif
'Tenth. If a woman makes a gift to her husband of half dower to
the dower diffusively, and ho then divorces her before
coition, he becomes thereby proprietor of the whole, but ^
has no further claim of recourse against her, whether the sIjq” ^
dower was a debt, or something specific ; because the gift
comprehends all that she had any title to. erntion.
Eleventh. If a husband should assign two slaves as his Two slaves
wife’s dower, and one of them should die, he has a right of
recourse against her for half the surviving slave, and half oneoftlicin
the value of the dead one. '
Twelfth. If ail option is stipulated for in marriage, the Option in
contract is void.'^ But there is a difference of opinion upon
the point from a consideration, on the one hand, that the except
marriage is fully established, because all the legal requisites
exist, and, on the other, that it is annulled by the option, the dower,
which is evidence of the absence of that complete satisfac-
tion which is essential to the constitution of marriage.
But if the stipulation for an option is restricted to the
dower, then the contract, the dower, and the condition are
all valid.
Thirteenth. The dow’er becomes the property of the The dower
wife by the mere contract, and she may therefore legally
use and dispose of it, according to the most common or the wife by
generally received of two reports, before taking possession eontracT;
of it. But should the husband divorce her before coition, but half of
half of it reverts to him, the other half only remaining her
property ; and if she should forgive him what belongs to band if
her, the whole would bo his. So also, if the person who ®|(®Qrccd
has power to contract the woman in marriage, that is, her before
guardian, as her father or paternal grandfather, should
forgive the husband the portion of the dower to wdiicii the
wife is entitled, the whole would revert to him ; and some
See antey p. 5. •
Vide Sale's Koran, cap. 2. p. 43 “ But if yo divorce them
before yo have touched them, and liave settled a dower, they shall
have half what yo settle, unless they release or he release ia whose
Ijands the c^ontract of marriage Is.”
78
MABRIAOB.
of our doctors have alleged that this power belongs to every
person who has authority to contract, a woman in marriage.
The father and paternal grandfather may forgive the
husband a part of the dower, but neither of them can give
up the whole. The husband’s guardian, however, has no
legal power to give up his ward’s right to half the dower
in the event of a divorce previous to consummation, for ho
is appointed to take care of the interests of his ward, who
can have no possible benefit from the abandonment of his
right. Further, when cither the wife has forgiven her half,
or the husband has forgiven his half, in neither case does
the right of property pass out of the person foregoing the
right, by the mere act of forgiveness, for that is only a gift
which is not completed without possession. If, indeed,
the dower were a debt against the husband, or if it should
happen to perish in the hands of the, wife, mere forgiveness
j of the responsibility would bo quite sufficient, because it
1 would bo a release which does not require even acceptance.
' It is othonriso in the case of mal, or tangible property, for
which a person is liable, for that dfinnot bo transferred by
mere forgiveness, or anything short of actual delivery.
A wife Fourteenth. If the dower is mooinijjul, or deferred, the
Sny'hcr- cannot deny herself to tho embraces of her husband ;
self to the and if she has contrived to withliold herself till tho ai-rival of
oHiw has- stipulated period, a question may arise whether she can
bMd whfn then lawfully deny herself till the dower is paid. To this
question some of our doctors have answered in tho afiirma-
tive, but others in tho negative, with better reason, because
she Avas already bound to surrender herself before the
arrival of the period agreed upon for payment of the
dower.
Fifteenth. If the husband should assign as the dower a
piece of silver bullion, which the wife has converted into a
vessel, and he divorces her previous to coition, she has an
option, and may deliver half tho identical article or its value
in money ; for it i^ not incumbent upon her to give up the
price of tho manufactm'e. If, on the other hand, the dower
were a piece of cloth which she has sewed up into a shift,
tho husband is not obliged to take it, and may demand hdf
me flower
is deferred.
Wlicrc the
dower is a
piece of sil-
ver which
has been
manufac-
tured, and
tho wife is
divorced
before co-
ition, sho
may re-
DOWER.
79
the value, because silver does not lose its identity by being store half
manufactured, whereas it is otherwise with cloth. its value.
Sixteenth. If the dower be instructien in a chapter of When fre
the Kortin, the husband is bound to make his wife capable instruction
of reading the chapter by herself, and it is not sufficient
that she merely follow him in repeating his words. True, Koran, she
if rendered capable of independently reading one verse, he
then teaches her another and she forgets the preceding, he read it hy
is net bound to go over it again ; but if she require the
assistance of, or bo instructed by any other person than her
husband, she is entitled to receive from him the hire of
such instruction, in the same way as if ho had assigned
something as the dower which ho is unable to deliver up.
Seventeenth. It is lawful to combine marriage and sale Sale and
in one contract, and the whole consideration must bo divided JJl^y bo*
in the proportion of the wife’s proper dower and the market joined in
* i * one con-
price of the ai-ticle. But if a woman, holding a cleenar in tract, and
her hand, should say, “ I have contracted myself to thee in
marriage, and sold this deemr to thee for a deemr," the is to be
sale would be void on ttio ground of usury, and the dower
invalidated, the marriage, however, being valid. If, again, tion to the
the articles were of different kinds, as if, for instance, a
garment were substituted for the first deenar, she should the market
say, “ I havo sold you this garment and contracted myself
in marriage to thee for one deenar,” the whole would be
valid.
Branches f ran the Preceding.
First. If a husband should assign as his wife’s dower a Case of a
slave whom she emancipates, and the wife is then divorced asrfgncd
before coition, she is liable for half his value. If, again, j™'’’
she sheuld have made the slave a moodubbur, it is said afterwords
that she has an option and may either revoke “ or abide by
the tudbeer. Should she adopt the latter course, the tiio wife,
husband has half the slave, but if she decline this exercise
of the option she cannot be compelled, and is only liable
for half the value. Further, if she should pay that amount
Tudbeer is like a legacy, and may bo lawfully revoked.-
I^uraya, p.^SRS. *
80
MABBUGE.
and then revoke the tudheer, it is said that the husband
may renew his claim to haJf the slav^, having accepted the
value merely from the intervention of tho tudheer. But
this decision is liable to doubt, from a consideration that
by payment of the value the woman’s right of property in
tho slave was once fully established.
Though a Second. If a guardian contract his female ward in
SuWcon- for B smaller sum than her proper dower, some
wrifor alleged that tho dower is null, and that she is
less than entitled to tho proper dower. Others have asserted that
dowcr”S?s appointed dower is valid, and this doctrine is the most
valid.’ approved.
whw an '-i'ftird. If a person marry a woman, assigning as her
exonera- dower somo property pointed out, but of unknown weight,
wife oV her perishes before dolivciy, and the wife releases him
dower is from it, this is valid. As also, where ho has assigned her
^*cre*it is ® invalid, and the wife being in consequence
not entitled to her proper dower releases him from it in whole
or in part, such acquittal is, in like manner, valid, although
the amount is yet unascertained, because this is merely
tho cancelling a right which in law is not affected by
ignorance of the amount. If, however, a wife should
exonerate her husband of the proper dower before coition,
such acquittal is invalid, because her right to it is not yet
established.**
A father. Fourth. If one should contract his infant son in mar-
contrAct*
injj his riago, and the child has independent means of his own, ho
is liable for the dower. If the child is poor the obligatipn
liable for rests entirely on the father, and, in the event of his death,
mflc^Ihc discharged out of the whole of his property, whether
son has the child should arri ve at maturity ’and become wealthy, or
hirown!^ die before it. ff, therefore, tho father should have paid
the dower, and the youth should come to maturity and then
divorce his wife before coition, the son and not the father
has alright to reclaim half the dower, the payment by the
father being considered, in tho light of the law, as a gift to
tho'son.
** It is only by coition that the right to the proper dower can be
established. Antey]^.!!. ‘
A father .
contract-
ing his
son lias
means of
his own.
DOWER.
81
Fifth. If a father should gratuitously pay the dower on Adult son
account of his adult son, and the son should divorce his
Wife beiore coition, he is entitled to revert to her for haln’or half the
tlio dower, and the father cannot object to his doing so,
notwithstanding what wo have just said in the case of an cjvcn by
infant child. But in both cases there is room for doubt.
Section Foubth.
Disputes regarding Dower.
First. If the dispute is upon the fact whetlicr a dower Word of
was assigned or not, the word of the husband is to bo
prefoiTod ; without any difficulty if the dispute has arisen preferred
previous to consummation, because a contract of marviaffo’^^H'’'*^
Without specification of dower is common and probable, to the fact
And though the dispute should have arisen after consum-
mation, here also the word of the husband is to bo pre- having
ferred, as supporting the original and radical conclusion
of freedom from obligation until the contrary is proved.
Further, there is no di^culty in assigning the ptcfcrence to
the husband’s assertion if lie fix an amount of dower, how-
ever trifling, down to a grain of rice,^** because hero the
probability is established, and the excess alleged being
contrary to the probable conclusion and unknown, must bo
supported by proof. If the difference between the parties Or Us
is as to the amount or quality of the dower specified, here vSne?*
still the word of the husband is to be preferred. Whereas, But the
if ho acknowledge the dower claimed by his wife, and^'^?]’*^*’*
allege his delivery of it, but fails to adduce any proof ofbeprefer-
his assertion, credit must in this case be given to the word
1 I* ji wiTi ^ ilispiite IS
and oath of the woman.. Where, however, there has been as to deli-
an actual delivery of the dower, but the wife alleges that
what was given was intended as a gift, here, again, the
word of the husband is to bo preferred, as he must neces-
sarily bo best acquainted with his own intention.
Second. If the husband and >vife should have retired Where the
together, and the wife alleges that carnal intercourse took
nave re-
^ “ Or it may mean the \veight*in money of a singlo groin.
PABT if. a
82 MARRIAGE.
tired to- place between them, then, if the case admits of proof on the
husband, as wjiere the wife was a virgin at the
is as to \ime of the man-iage, and asserts coition in the natural way,
wordof the decision is obvious. Where, again, she was not a virgin
hnsband is at the time of the marriage, or alleges coition unnaturally,^^
preferred. husband’s declaration on oath must be credited, because
the original condition is an absence of coition, and he
denies what she alleges, which therefore requires to bo
established by proof. Some doctors, however, are of
opinion that her assertion upon oath must bo received as
supported by the natural conclusion to bo drawn from a
man and woman in good health retiring together wdicn no
obstruction to the carnal act is alleged. But the first
doctrine is the most approved.
In dispute Third. When the dower is instruction in a chapter of
struction Koraii, 01* in a trade, and the wife alleges she has
wife’s word been taught something else, lier word is to bo preferred,
l)rc cnc( . ^ denier of what lie claims.
Where Fourth. If a woman should adduce evidence to prove
bcciTtwo"^ that her husband married her at tw§ difierent times by two
separate separate contracts, as founding a claim to two dowers, and
andXo**’ he should insist that what she supposed to bo two con-
man al- tracts w'as merely a repetition of the one contract, her word
ihf^second preferred, because appearances are in her favour,
was only a Whether he is liable for the two dowsers is a question which
o?tlic a^t, answered in the aflirmative, in reliance on the fact
the word of there having been two separate acts of contract ; but it
wife is also been said that he is only liable for a dower arid a
preferred, half. The first opinion, however, is the most approved."
Sec note on page, fiO.
( 88 )
CHAPTER VI.
OF EISM, NUSROOZ, AND SHEKAK.
Section First.
Kism, or Partition.
p]Acii of the spouses possesses certain rights which it is Mutual
incumbent on the other to respect ; and, as a husband is the parties,
bound to maintain his wife by providing her with raiment
and food and a place to reside in, so also it is incumbent
on the wife to submit herself to his embraces, and to avoid
everything that mayyendor her repulsive or .disagreeable
to him.
Kismut, or a partition of his time amongst his wives, is Eijual par-
a duty which is incumbent on a husband, whether ho be
free or a slave, and even though he should bo impotent or nmong
an ettnuch ; as also though ho be insane, but in that case cu^ent'on
the partition should bo regulated by his guardian. a husband.
Some of our'<doctors are of opinion that partition is not W duo
incumbent on a husband until he has onco begun to cohabit
'Wth his wives ; and this doctrine is the most approved, com-
though others have maintained its necessity from the ‘
beginning of the married state.
If a man be married to one wife she has a right to one Where he
night out of every four, and the other three are at his own wife
disposal to sleep where he pleases. If he has two wives
they are entitled to two nights, and if he has three they are
entitled to three, while he has a right to dispose of the
excess in each case up to four, as ho pleases. If he has whetu he
the full complement of four wives, each one of them has a 1’“®
right to a night in her turn, and he cannot absent himself three.
84
MARRIAGE.
from tlio proper partner of that night without a just pretext,
or being on a journey, or hpr permission.
The pc- Whether the husband can lawfully regulate the partition
one o/two than one night to each wife, is a question
nights that has been answered in the affirmative, but it would
* f>ccm that ho cannot do so without their consent. And if
^*^*th their should marry four wives at once, the order of cohabita-
consent. should be determined by lot. Some, however, have
said that ho may begin with any one of them at his
pleasure, and so on till ho has gone through the whole,
after which he is bound to equality in the same order, and
this opinion is the most generally approved,
limitea to incumbent on a man in respect of partition is
spending merely to spend his time ivith the wife to whom it is due,
his time ^iid does iiot extend to coition. It is also confined to the
cnUcilly
with his night, to the exclusion of the day. But some say that he
wives, should not only remain with her during her night, but
should prolong his stay for. the morning, and there is a
tradition to that effect.
A free If a person be married to a slave and a free woman, or
tilled to several free ivomen, each of them is entitled to two nights
twice the foy one to tlio slave, and a zbnmccah or infidel subject is
tunc of a . . . .
•slave, and m respect of partition on the same footing as a slave ; so
amoothm- jj jjjjjjj mavried to a mooslmah and a Jdtahecah,
((A to twice ’
the time of tlio former ia entitled to two nights for one night to the
Lcaii" . > ^'hilc if he has a mooslmah who is a slave, and a
kitnheeah who is free, they are both to be treated exactly
alike in respect of partition.
wWchcach ^ woman enjoyed hy right of property has no title lo
wfe is en- partition, whether she bo single or there he several in that
be'spent*^ predicament. And a man is at liberty to go tho round of
wthherin his wives in their own houses or apartments, or to call
to own apartment. He may also practise the one
or by cal- coursc with somc of them, and the other course with others,
hisf impartiality in this respect not being required.
Reven A man should semain seven nights with a virgin for
iowwl"*'' coiisommation of his nuptials, and three nights with a
for con- woman who has lost her virginity, such times being
specially appointed by law for tjiese respectively, and he is
KISM, OR PARTITION.
85
not obliged to make up to bis other wives for the deficiency, ria^ with
If two or more wive^aro conducted to a man in one night, and Uim!
ho may commence, according to some, with whichever of with a
them ho pleases, while, according to others, ho ought to *'^‘*“*‘
cast lots ; but the first opinion is most generally approved,
though the latter would perhaps bo better.
The duty of partition abates on a journey. Some,
however, have said that if the journey bo only a migration ai)ate^ 9 *^on
from place to place, with intermediate residences at places
on the way, he ought to make up for it to his other wives
on his return, and that it is only with regard to distant
journeys that the right abates, ^\^len ho intends that any
of his wives should accompany him on a journey, ho should
cast lots between them. Whether ho may pass by the person
on whom the lot has fallen, is a question that has been an-
swered in the negative, because she has been in a manner
a2)pointod for the purpose, though the point is ojien to doubt. Slave's
The right Of a slave to partition is not dejicndcnt on jiartubn
the permission of her master, because this is, a matter in iiotdcpcnd-
which he has no portion. mLter.
Equality among wives should be observed in respect of Equality
maintenuiicc, general behaviour, and coition. ' A husband obsemdin
ought also to remain in the morning with the wife who is muiu-
ontitled to the jireceding night. Further, he should allow
his wife to visit her father and motlier on the ajjprooch of wi bclia-
death, though it,is in his power to forbid her visiting them
or her other relatives, or going out of his home except on
necessary occasions. •
Partition is a connubial right common to both husband Awifomay
and wife, or one in which both are partners, beeauso they
botli participate in its fruit or advantages ; and if a wife her ims-
should release her husband from the duty to her, ho has
an option and may accept or dcclino availing himself of it. wives, but
She may also bestow her right as a gift upon her husband,
or any other of his wives with his congent ; and if the gift consent,
is to her husband he may spend the night wherever he
’ Tliat is, it is proper, though not on incumbent duty. Sec ante,
»• 84 . ,
86
MABBUOE.
pleases; but if she bestows it upon his other wives, he
must divide it between them ; while if she should give it to
one of them in particular, it must be devoted specially to
the donee. In like manner, if throe of them should give
up then.' nights to the fourth, it is incumbent on him to
remain with her constantly and exclusively.
V When a wife has bestowed her right on another with
her time to the husband’s consent the gift is valid, and she may retract
may bfre- not SO as to give the retraction a retrospective
tracted. effect. The husband, therefore, is not bound to make up
to her for the past, though he is obliged to have respect
to her right for the future. Should she revoke without
informing him, ho is not bound to make up for any nights
that may have passed previous to his becoming acquainted
with the revocation.
hwmrt to ** woman should ask anything in exchange for giving
keep pro- up her right, and he should consent, is he bound to
perform? It has boon said not, because this is a right
exehange which docs. not admit of separate valuation, and the
tiracT^***** exchange therefore is not valid.
Infants or An infant has no right to paiiition, nor has a woman
jnad wo- jg permanently mad, nor a nank'izah, that is, one who
entitled to IS in a state of rebellion to her husband, nor one who has
partition. gQjjQ journey without her husband’s poimission ; so
as to lay the husband under any obligation on account of
' what is past.
A kus^nd A. husband is not entitled to visit one of his wives
visit any during a night belonging* to another, unless she be sick,
of Ids when it is lawful to visit her. "Whether, if ho spend the
in'; the whole night with her, he is bound to make up for it to
mi MhJf other, is a question that has been answered in the
affirmative, because she has not obtained her night, and
also in the negative, because it is like a visit to a stranger;
and this view seems most agreeable to the principles of
law. If he shoul4 enter the chamber of another and
copulate with her, and then return to the wife whose night
it is, he is not bound to make up for such coition to the
Tfife whose turn is thus encroached upon, for coition is not
one of the rights of partition. ' t »
NUSHOOZ, OR REBELLION.
87
When a man has oppressed his wife in the matter of Man bound
partition, he is boun(J to make tip to her for any deficiency ^
in her nights. deficiency.
When a man has four wives, and one of them is Case of a
rebellious, and ho then fixes a period of fifteen nights
in succession for each of his wives,® and ho has fulfilled turning to
their time with two of them, after which the rebellious Juce.
one returns to her duty, he is obliged to fulfil her fifteen
days to the third wife, and five to the one v/ho was rebel-
lious, giving the latter one night and the other three
nights for fivo times in succession, by which means the
third wife will obtain her fifteen nights, and the rebellious
one her five, after which he reverts to the original measure
of partition between the whole four alternately.
If a man has two wives in different cities, and has Cascoftwo
remained with one of them for ten days, it is said that
he should abide for the like time with the other. cities.
If a man should marry a wife, and before consum- Time for
mation should have to draw lots for one of his wives to
accompany him on a journey, and the lot should fall upon bc^
her, it is lawful for him, on his return, to make up to her a w?ic,
her appointed time,” for this does not enter into thcifJ*c^*“»
. T , . . , gone on a
journey, nor does a journey enter into partition. journey
before it.
Section Second.
Nushoos, or lichelllon.
Nmhooz in law signifies a departure from obedience. Legal defi-
its original meaning being elevation or raising up. And
it may bo exhibited on the part of the husband, as well
as that of the wife.^ Should the symptoms of it appear On the
on the part of the wife, as, for example, when she frowns
in her husband’s face, or appears languid and wearied in may bo ad-
administering to his wants, or has otherwise changed her »
* That is, with their consent.— See antepy. 84.
” See ante, p. 85.
* A husband can hardly he said to bo rebellious towards his wife ;
and perhaps “ elated," or “ overbearing,” better expresses the meaii-
^ing of tlie^word in its application to boUi the spouses.
88
MARIIIAQE.
but not
beaten
until some
positive act
of disobe-
dience.
How it is
to be treat-
ed when
exhibited
by the bus-
bund.
respectful behaviour towards him, ho should first rebuke
or admonish her; and if* she persist in such behaviour,
ho may then lawfully abstain from matrimonial converse
with her, by turning his back on her in bed, or, according
to some, totally banishing her therefrom ; but there is a
positive tradition in favour of the first opinion. It is not
lawful for him to beat her until some positive instance
of nushooz, by refusing to obey him in some particular
case in which ho is entitled to a compliance with his will.
When that occurs even for the first time, ho may lawfully
chastise her, but only so far as may afford a reasonable
hope of her returning to obedience, and by no means to
the extent of violent blows, or the efi'usion of blood.
When minhooz appears on the part of the husband, by
depriving his wife of any of her rights, she may complain
to the judge, who should compel him to their observance.
A wife, however, may abandon any of her rights, as her
light to partition or maintenance, in order to conciliate
her husband ; and he may lawfully accept the surrender.
Sectioji Third.
. Shelak, or Discord.
Etj-mo- This is derived from the word shvk, which signifies to
scpaiuto or divide, as If the spouses were in a state of
separation from each other.
When it When there is mishooz on the part of husband and
appears wife, and reason to apprehend an actual rupture, the judge
shoal'd a^ should appoint two umpires, one from among the relative's
of the husband, and tho other from among those of the
migrate to decide as may bo best in the case. It is lawful,
the pSes these umpires be not of the family of either,
' or that one of them bo of the family of one party, and the
other a stranger to both. These persons should, accord-
ing to the most authentic doctrine, be sent, not merely as
agents, but with pov7erB to decide between the parties as
judges. If they agree as to measures of accommodation,
they can give them effect without reference to the consent
of the parties. Except that, though the umpires should
SHEEAE^ OR DISCORD.
89
agree as to the necessity of a separation between them,
this cannot be efifectc4 without the husband’s consent, if it
is to be by a tuldk or a divorce ; or without the wife’s
agreeing to a compensation, if it is to be by klioolu, or
release.
When the umpires have been sent by the judge, and Who may
the parties, or either of them, refuse to appear before
them, some are of opinion that judgment cannot be of the par-
given, as it would be against an absent person. But
were better to say that it can be given, for it is limited to either to
what is for the good of the parties, and actual separation fj^^them'
is made dependent on their own permission.
Whatever is stipulated for, or directed by, the umpires, Their de-
must be lawful, or otherwise it may be dissolved or can- ^cewd-*^
celled. If a husband should prevent the wife from exer- ing to law.
cising any of her rights, or should render her jealous by
taking another wife, and she should in consequence expend
something on her husband as an inducement to him to
grant her a khoold, or release, such concession on her
part w^ould be valid, and not be considered compulsory.
90
MABBUGK.
CHAPTEE VII.
OF LAWS BELATINQ TO CHILDBEN.
Section Fikst.
Of the Estahlishnent of Parentage.
Three do Childben arc of three tlescriptions : children by Avives ;
rfehil-”* children hy slaves ; and children by women enjoyed under
dren. a semblance of right.
bMA^dcr With regard to the first : — All children horn under a
a contract contract of permanent marriage appertain to the husband,*
upon condition of coition and the lapse of not less than six
marriago months^ uor more than the longest period of gestation from
their ^ occuiTcnce till the birth of the child. That
mother’s period is nine months, according to the roost common
on*tii*TCe’ opinion ; but some of our doctors have extended it to ten
conditions, months, and this is considered to be good® or correct.
* . Others, again, have gone so far as to extend the period to
a year ; but their opinion is now exploded or abandoned.*
micharc The conditions above mentioned are indispensable,
sablcf So that if there has been no coition there can be no
‘ It would seem, from what lias been said at pp. 14, 43, that
children bom under a temporary contract also belong to the husband.
* This appears to be the shortest period of gestation in the human
species, by the unanimous consent of all Moohummudan lawyers.
See i>., p. 393.
® Hmun. See ante, p. 2, note ®. The author of the Shuraya
is supported in this respect by tlio SMJch, in his Muhsoot, and by
Allamee.
^ The Ilanifitcs extend the period to two years, on Uio faith of a
tradition by Ayesha of a saying of the Prophet.— D., p. 393.
LAWS RELATING TO CHILDREN.
91
affiliation of the child to the woman’s husband ; and though
such has taken place, yet if the woman be delivered, at less
than six months from its occurrence, of a perfect and living
child ; or if both the parties should^concur in declaring that
its bii-th has happened at more than nine or ten months
from the time of coition ; or this fact can bo established by
the husband’s absence from his wife longer than the longest
period of gestation : in none of these cases can the child of
which she has been delivered be affiliated to her husband,
nor can he lawfully claim it as his own. But, on the other
hand, whore all these conditions are found, though an
adulterer should have done wickedly with the wife, yet
her child belongs of right to her husband, and cannot be
repudiated by him, otherwise than by liciu or imprecation ;
for an adulterer cannot bo legally the father of a child ; ®
and if mamed parties differ as to tho fact of coition or the
birth of the child, a preference must bo given to the word
of tho husband when confirmed by his oath. With coition
and expiration of tho shortest period of prefpuancy, or
delivery just at six months from the act, it is unlawful for
the husband to deny his parentage, on suspicion of the
mother’s misconduct, or even though he should know her
with certainty to have committed adultery; and if he
should deny her offspring to bo his child, its parentage as
from him cannot bo rescinded in any other way than by
going through the process of lidn.
If a man should divorce his wife, who thereupon observes Case o£ i<
an* iddut or period of probation, and gives birth to a child
within the longest period of pregnancy from the dale of the insaring
divorce, such child belongs to him, if its mother has not been
intermediately enjoyed by another man under a contract of longest
marriage or a semblance of right. But if a man should ^g^ion
have carnal intercourse with a woman, get her with child, the
and then marry her ; or, if tho woman being a slave, ho divorce,
should subsequently 'marry her, in neither of these cases
can tho child be lawfully affiliated to him.
It is incumbent on a husband to acknowledge tho chill A
Seo dttte, p. 14.
92
MARRIAGE.
wedlock
cannot be
rejected
by the
husband
of its
mother,
otherwise
than by
lidn.
of Ills wife when ho admits that. he has had conjugal
intercourse with her, add that the child has been horn
by her ; and if he should deny the child his denial is of
no avail to the rescinding of its parentage, unless ho goes
through the 2)rocess of I'uin. And the same rule holds
good though the parties should differ as to the period
between the birth of the child and the date of their
intercourse.
Case of a
divorced
woman
bearing
a child
within the
shortest
period of
gestation
from the
date of tlic
divorce.
A man
who has
had coii-
pcction
with his
female
slave
should
acknow-
ledge her
offspring,
if born in
When a man has divorced his wife, who, after observing
an iddut^ has married again, or has sold his female slave,
who is subsequently enjoyed by the purchaser, and the
woman in either case gives birth to a child at less than six
months from the divorce or the sale, the child belongs to
the first husband, or the seller ; whereas, if it is born at
six months or more from those respective dates, it belongs
to the second husband, or the purchaser.
With regard to children by slaves : — If a man has con-
nection with his female slave, who produces a child at six
months or, more from the date of coition, he is bound to
acknowledge the offspring as his own ; but if ho reject or
deny the parentage liun or imprecation cannot bo required of
him, and judgment must be given in favour of his rejection
on the outward appearance of the case. If, however, ho
should subsequently acknowledge the child, that would esta-
fut ma ^ parentage. When a slave has been enjoyed by her
rcjcctits master, and also by a stranger, her child must be decreed
to the master : and if she should be transferred to several
without ,
lidn. owners successively, each of whom has carnally enjoyed
her, the offspring is in this case to be adjudged to him in
whose possession she is at the time of its birth, provided
that it take place at six months or more from the date of
his intercourse with her ; otherwise it belongs to the next
antecedent proprietor, should the delivery correspond to
his connection with the mother ; and if not, to the next
preceding, and so qn.
How the If a slave, being the joint property of several persons,
of a cMH ^ equally enjoyed by each of them, and is delivered of a
born by a child, who is claimed by them all, the parentage must he
slave, the decided by drawing lots, and Re who is thus established M
LAWS HELATINa TO CHILDllEX.
93
tlio father must make good to all tho other proprietors
their shares as well in the value, of the mother as of the
child on tho day of its* being horn alive. If one only of
them should claim the child, it is to ho affiliated to him,
and ho becomes liable to the others for their shares in the
value of tho mother, ant^of the child, which ho cannot
reject on the pretence of izU
If a person has had connection with his female slave
who is wickedly enjoyed by another, the offspring apper-
tains to her master. If at its birth there should appear
no traces of resemblance between him and the child, but
on the contrary there is strong reason to confirm his
suspicion that the child is not his, it has been said that
he cannot properly either acknowledge or deny tho child,
but should bequeath something to it, and not givo it a
claim to inheritance wdth his children. This opinion, how-
ever, is liable to some doubt and difliculty.
With regard to children begotten under a semblance of
right: — If a man should erroneously cohabit with a
stranger, supposing her to be his wife or his ‘slave, and
sbe should produce a child, its parentage is established in
him. The same is the law when a person has erroneously
had carnal connection with the slave of another, but in
this case the father is liable to the mother’s master for
property of
several
partners
who have
all enjoyed
her, is to
be deter-
mined.
The child
of a slave
belongs to
her master
though sho
has been
wickedly
enjoyed by
another
Cases ot
children
begotten
under a .
semblance
of right.
tho value of the child at the period of its being born alive.
If a man, supposing a woman to bo unmarried, or a
widows, or divorced from her former husband, should enter
into a contract of marriage with her, and it should after-
wards appear that the former husband was not dead, or had
not divorced her, tho woman must be restored to her first
husband, after observing an iddiit on account of her
connection with the second; but her child, if sho is
pregnant, belongs exclusively to tho second, subject to
tho conditions formerly mentioned, whether sho acted, in
tho matter of tho supposed death or divorce, on tho decree
of a judge, or tho information of a single person, or the
testimony of witnesses.
See aiite^ p. 43.
94
MABBUOE.
Section Second.
Of the Suckling ’’ and Custody ® of Children.
A wife A mother is not hound to sncklo her child, and may
to suckle lawfully demand hire for doing so. If she has been irre-
Md ma**’ vocably divorced from the father* it is positively incumbent
lawful?y on him to hire her for the purpose. But some of our
hire*froin maintained that he is under no such obliga-
her bus- tion if the mother be still his wife ; and it docs not appear
doing^so positive duty, though it is quite lavrful to hire her
for the puiqioso in such circumstances. A master may
slave may compel his slave to suckle her child. The hire for suckling
pclled*by infant should be paid by tlie father out of his own
to su'wo Avhen the infant has no propei-ty of his own. And
bor child, the mother may either suckle the child herself, or employ
another nurse for the purpose, retaining the hire.
A child The time during which an infant should bo suckled is
sueWed*^^ two years, though it may bo shortened to one year and ten
for two . months : but a further reduction of the time is unlawful,
jears. Qppj.^,gyiQ,j Qj. cruelty to the child. It may,
however, be lau'fully prolonged for a month or two beyond
the two years ; though the father is not liable for tho hire
of any excess over the two years.
A mother A mother has a preferable right to the suckling of her
own child when she demands no more than another is
light to' willing to do it for. But if her demand is greater than
linfr of her other woman’s, the father may remove the child from
when will mother, and deliver it to tho other. So also If a
ing to do ' stranger should olFer to suckle the child gratuitously, the
it on the mother has a preferable right on the same terms : but if
ns another she is uot satisfied to suckle it gi’atuitously, tho father is
woman, manner at liberty to deliver it to tho other. When
the father claims that he had found a woman who was
willing to suckle the child gratuitously, and the mother
denies the fact, his word is to be preferred, because he is
removing a liability from himself. This, however, is subject
Arab., Rizaa.
‘ llizmut.
LAW8 BELATINO TO CHIIiDREN.
95
to some donbt ; and it is certainly becoming and more
proper that an infant should be ruckled on the milk of its
own mother.
With regard to the custody of the child, the mother has Tho ens-
certainly a preferable right dming the whole time of suck-
ling (that is, two years), whether the child be male or longs to
female ; provided that she is free, and of the Mussulman
faith, — for a slave or an infidel can have no right to the child is
custody of an infant, with a Mooslim.® After the child has
been weaned the father has a preferable right to its custody the cus-
if a male, and tho mother if a female, until the child
. , , « T , male child,
attained tho ago of seven years, or ten, according to some ; until it has
while others maintain tho mother’s right to the custody of a
female child till she marries. Tho first opinion, however, sevcn“
is more agi'ccable to traditional authority, and tho father
is then entitled to her custody. If the mother should the father,
enter into another marriage, her right to tho custody of “
cither male or female child at once drops, and tho father to the
has a preferable right to tho custody of both. But if
should die, tho mother has a preferable title over hisWvcnycai-s
executor to tho custody of both the cliildren. So also “ ti®"‘i^J®/,®’,.
tho father bo a slave or an infidel, the mother has a pro- is entitled
fcrablo claim to the custody of a child, whether male or
female, even though she should have entered into a second of botli.
marriage. If, however, the father should bo emancipated,
ho has all tho rights of a free man, and the custody of his
children among them.
When both tho parents of a child are dead, his or her The cus-
custody belongs to the father’s father ; and, failing him, it ciilid^both
has been said that tho custody belongs to the relatives in of whoso
" ^ parents
the same order as they are entitled to inheritance. But are dead,
this is liable to donbt. According to the Sheikh, to whom
God be merciful, when there are both a sister on the father’s father.
side and a sister on tho mother’s, the custody of the infant
belongs to the former, because she has the larger shore of
the inheritance. But there is a donbt of the preference in
this case, arising from the fact that they are both equal
* That is, I think, the father being a MoosUm.
96
MAnuiAUK.
in degree ; and the same remark applies to his preference
of the paternal to the maternal gi'andmother. Further,
he has said mth regard to a grandmother and sister, that
the former is to bo preferred because she is a mother. But
he has said, with regard to the combination of a paternal
and maternal aunt, that their rights to the custody of an
infant are equal ; and that when there is a combination of
persons equal in degree, as in the case just mentioned, the
right to the infant’s custody is to be determined by casting
lots between them.
In connection with what has been said of the suckling
and custody of infants it is to bo observed
Mother First. When a mother demands more than another
l^s her vf'oman for suckling her child, the father may, as already
righttotho „ .
custody of mentioned, deliver it to a stranger ; but there is some
while*it1s *** mother’s losing her right to the custody of
suckled by the infant in that case. The better oiiinion, however,
another geemg to bc that slio docs forfeit her right.
Effect of f Second. When a child has attained to puberty and
puberty f discretion, 'tlio power of the parents is at an end; and ho
authority himself to whomsoever he pleases,
of parents. Third. When a woman marries, she loses the right to
A woman, custody of her child. If she is divorced reversibly,
riage, matters remain as before ; but if the divorce is irreversible,
lascs the though there is some difference of opinion as to the revival
her child, of her right, it seems more reasonable to say that it does
revive in that case.
tf
Puberty is established by natural signs, which it is unnecessary
to mention, or by age, which is fifteen years in males, and nine in
females ( fm. I)., p. SOH ; Shuraya, p. lUil) . According to the Ilanilites,
the age for botli, in the absence of the natural signs, is fifteen years.
Tliisis on the authority of the two disciples, and also of Ahoo Ilunccfa
himself by one report ; and the futwah, or judicial decision, is in
accordance with it— {Kafee, as cited in the Kifayah, vol. hi. p. 845, and
adopted by the Fut. Alum^ vol. v. p. 0J3). There are, however, other
reports of sayings by 4^oo Huneefa^ which extend the time for males
to eighteen and nineteen years. It seems to bo agreed by all the
Hanifites that no one can be adjudged an adult before twelve years,
if a boy, or nine if a girl, though the party should claim to be so, or
the natural signs are present. (Futc Al. ibid.)
( 97 )
CHAPTER VIII.
OF MAINTENANCE.^
INHERE arc only tlirco grounds of liability for maintenance, Three
viz. Zoivjecuty or tlio relation of a husband to his wife ;
Kurahnty or relationship by blood; and Milky or property, tenance.
Section First.
Of the Maintenance of Wives.
This involves tlio consideration of its conditions, quan-
tity, and appendages.
The conditions under which maintenance is due by a Conditions
husband to his wife, are two in number 1st, a permanent whiJ.h a
contract of marriage ; and 2nd, tumheen, or such a placing
of herself by the w’ifc in the powTr of her liusband as to mninten-
allow of his free access to her at all times ; for, if his
enjoyment of her is restricted to any particular time or
])hicc, to the exclusion of all others, there is no tumkeen.
There is some doubt as to one of these conditions being
suflicient of itself without the other; and, according to •
that opinion of our masters, wdiich seems most agreeable
to traditional authority, tnmkecn is indispensable to the
husl)and’s liability. Consequently, it is necessary that the
wife should not be too young for conjugal intercourse. It
makes no difference whether the husband bo a minor or
adult. The SheAkh, indeed, has said that a wife, though
adult herself, is not entitled to maintenance if the husband
has not also attained to puberty. But there is a difficulty
in the case, arising from the fact of the tmnkccn being
complete on the part of the wife ; and the better opinion
seems to be in favour of the husband’s liability. Ho is
* Nufuhiit, pL oUiufuhut.
• part ii.® h
98
UAlUtUOE.
also liable though sho should be sick or afflicted with a
malformation of the gonccativo organs obstructive to con-;
nubial intercourse.®
The right A husband’s liability for the maintenance of his wife
fMtcd'hy suspended while sho is on a journey, provided that
her under-; it was undertaken with his pennission, or in performance
jonme/ incumbent duty, such as the hujj or pilgrimage,
with hie But if the duty was voluntary or self-imposed, and she has
sfon^OT departed without his permission, ho is under no obligation
without it, to maintain her during her absence. Where, again, sho
anw of *an betaken herself to prayer, or fasting, or religious retire-
incumbent ment, ho is obliged to maintain her, though she should
have done so without first asking his permission, because
it is always in his power to cancel or put a stop to that by
recalling her to her duties. If, however, she should per-
sist in such conduct, in opposition to his wishes, that
would amount to an act of nmhooz or rebellion, for which
he would be quite justified in stopping her maintenance.
A divorced A woman revocably divorced is entitled to maintenance,
titlcd*to * ^ entitled to it. But a woman
niainten- absolutely scpamted from her husband loses all right to it,
divorce bo* whether the separation has been induced by an irreversible
otherwise * ® cancellation of the marriage. If sho be
when irre- pregnant, however, liis obligation to maintain and provide
vereible, her ,with a residence continues until her delivery. But
is preg- , here, according to the Sheikh, the maintenance is due, not
on account of herself, hut of the fmiuH in her womb.
Hence, it would follow that, if a freeman should marry a
slave, under a condition with her master that the offspring
shall he slaves; or a slave should marry either a free
woman or a slave under a like condition with his own
master that the offspring shall he slaves ; and the women
were divorced, being pregnant at the time, there would bo
no liability for maintenance on the part of the husband in
Donbt either case. On the other hand, a pregnant widow would
vddow's entitled to maintenance till the birth of her child. But
^ Kurn and Ruluk are ;the particular deformities mentioned, for
which sec ante, pp. ftO, fil.
MAINTENANCE OF WIVES.
99
with regard to her, there are two reports ; according to one title to
■ of which, and that the most common or generally received,
she lias no title whatever to maiiitenanee ; and the other, though
that she must be maintained out of the chikVs share in his pregnant
father’s inheritance.
In respect of maintenance, there is no distinction between Zimmeeah
a wife that is a Moodimah and one that is a Zimmccah, or
infidel subject, or between one that is free and one that is to
a slave, all beins alike entitled to it.
As to the quantity of maintenance, the standing rule is Quantity
that it should be determined by the woman’s requirements in
respect of food, condiments, clothing, residence, service, and
implements for anointing,® a duo regard being also had to
the custom of her equals among her own people in the same
city. According to some of our doctors, the proper quantity in respect
of food is a inoodd for high and low, without any distinction *
Ijctween the wife of a poor and a rich man ; but, according
to others, whoso opinion is more reasonable and gtmcrally
preftirred, there is lio fixed quantity of food, and the Avoman
should liave as much as is necessary. Servfco is to bo in respect
regulated by what has been usual Avith the Avoman herself.
If she is of the class of persons aa^Iio are usually serAXHl by
others, she must bo provided Avith a sciTant; otherwise,
slie must servo herself. .In the former case, it is optional
Avith the husband to maintain her oavu servant if she has
one, or to buy or hire one for her, or to serve her him- ,
self, for that is sufticient. And even though she should be
one Avho has not been accustomed to have a servant, yet, in
tlie event of sickness, she must be provided Avith one, from
a regard to Avhat is customary in such cases. In no case
is her l\usband obliged to provide her Avith more than one
servant, even though she should bo a person of rank.
Condiments and dress are to be regulated by what is cus- in respect
tomary among the woman’s equals in the same city. The
same rule is applicable to residence ; but the woman may dress, and
demand, and is entitled to, a separate upartment for her-
® Tljis is a literal rendering of the word, but in common parlance
it means, I believe, adorning generally, and includes a comb, looking-
glass, &c.
100
MARBIAGE.
self, free from any companionship hut that of her husband.
With regard to dress, slief has a right to something addi-
tional ill Avi liter, such as a cloak for ivarmth when aivake,
and a quilt, for the like purpose, when asleep — the kind and
quality of both to be regulated by what is usual among her
equals ; and, if she belong to the higher orders of society,
sIiG should have something better than the dress in ordinary
Avear, equalling in splendour the dresses of Avomen of the
like rank in life.
Appen- Of appendages the most important are comprised in the
folloAving cases : —
Husband Fint. If a Avoman should say, I Avill take the alloAv-
w?fe servant, and serve myself,” the husband is not
serve her- bound to comply ; and if she should actually proceed to do
also allow ^^bat is iicccssary for herself in the Avay of service, without
her for a waiting for his permission, he is not bound to pay Avhat she
may demand of him on that account.
A wife is Second. A Avife, Avhen she has i)laccd herself in the
husband, is entitled to her maintenance day
mainten- by day, and if he refuse to give it, and the day passes, her
though the confirmed ; and so on for other days in succession,
amount though tlio. judge sliould ncA^er Iuiax fixed the amount, nor
should not jj^ade any order in her faA'our.'^ If Avhen the husband has
previously agreed to pay her periodically, he has delayed to do so, and
^ Avhole period has passed, she being all the while Avithin
. his poAver, she is fully entitled to the maintenance for that
period, and for any excess during Avhich she has maintained
herself out of other means. So also sho is entitled to a ncAV
t
dress, if the time has passed during which the former
should have lasted. If, on the other hand, he has paid
her maintenance in advance for a stipulated period, and
divorces her before its expiration, he is entitled to demand
back from her a proportionate part of tho maintenance for
the unexpired period,* excepting only maintenance for tho
day on which tho divorce is pronounced. The same rule
— — w — —
* According to the Ilanifitcs, arrears of maintenance cannot bo
recovered, unless it has been fixed by agreement or a judicial decree.
— p. 44;l.
* This is opposed to the Ilanifite doctrine.— Z>., p. 444.
MAINTENANCE OP WIVES.
101
is applicable to any dress wbicli be may have given to licr
in advance. , ^
Thinh When consummation has taken place, and tbe A wife
woman has remained with her husband eating and drinking
at his table, she has no right to make any demand for the matiou,
time during which she has thus continued to live with to Uvraml
him. If the marriage has not been consummated, and board with
some time has passed without her making any demand
on him for maintenance, he is not obliged to render it, entitled to
according to those who say that timkeeti is the ground of nji[”,^ten-
ilie husband’s liability, or a condition of it, for ho may have for
no certainty of obtaining full poAver over her if he should
demand it.
As a consequence of this view of tiunkcen, it follows Some con-
tliat if a husband should be absent, and his wife should
appear before the judge offering to place herself within the being u
poAver of her husband, ho Avould not be liable for her main- Jl^ncSn
tenance till apprised of the offer, and the lapse of a sufB- of main-
cicut time for his coming to her, or sending an agent, Avith
the actual surrender of herself to him or the 'agent. If,
Avhen informed of her offer, he should be in no haste to
send an agent or come himself, still his liability Avould
drop for the time necessary for the journey, and he Avould
be bound only for the excess. So also, if she Avere contu-
macious, and should return to obedience, ho Avould not be
liable for her maintenance till informed of her submission, .
and the lapse of a sufficient time to allow of his OAvn coming
to, her or sending an agent. If a wife should apostatize
from the faith of Islam t her right to maintenance would
cease ; but it Avould immediately revive if she should return
to the faith, though her husband Avero absent; for the
apostasy Avhich was the cause of its abatement has ceased
to exist. It Avould not be so in the case of mishoos, or
contumacy, for by that she actually passes out of subjection
to her husband, and her right to maintenance does not
revive till he has again received possession of, or poAA^er
OA'or her.
Fourth. When a AAoman, absolutely separated from her
husband, alleges that she is pregnant, maintenance must nancy on
102
MABBIAQK.
the part of be rendered to her day by day until her delivery. But if it
should turn out that she ‘was not with child, she must
restore whatever she may have received. And no woman
absolutely separated from her husband, except one who
has been divorced and is pregnant, has any right to main-
tenance. The Sheikh, however, maintains, as already
obsemd, that every pregnant woman is entitled to it,
though at the expense of the child in her womb.
AdcMdw Fifth. When the husband has a debt against his wife,
haritod*” lie may set it off against her maintenance, day by day, if
set-off* circumstances ; but it is not lawful for him
againsther to do SO if she is indigent, as debts are payable only out of
surplus that may remain over one’s own food. Yet if
is in’good the mfo is content, there is no objection to his making
circam-
stances.
Mainten-
ance of a
wife has
precedence
over that
of rela-
tives.
the set-off.
SLeth. The maintenance of a wife has 2 )recedenco over
the maintenance of relatives ; so that the surplus over the
husband’s food is first to be expended on his wife, and
never to be applied to relatives unless there is a reserve
over what is sufiicieut for her maintenance, because her
maintenance is in the nature of an exchange for her sub-
jection to his will, and is established as a debt against him.
Section Second.
Of the Maintenance of llelatives.
Who arc Parents and children are together liable for a person’s
nwtatov maintenance. With regard to the fathers and mothers of
ancr. parents, there is some doubt as to their liability; but it is
most agreeable to traditional authority to say that they also
ore liable. Beyond the two pillars, that is, ascendants and
descendants, the liability docs not extend to any other
relatives, such as brothers and sisters, or uncles and aunts
paternal or maternal, though it is becoming and proper
for a person to maintain them olso,^ particularly when he
is one who would inherit from them.
* According to tho Ilanifitcs, tho liability extends to all relatives
within the prohibited degrees. — D. jf. 40;$. ,
MAINTENANCE OP RELATIVES.
103
Poverty is a condition of the right to maintenance. Conditions
But is inability to cam anythiii^ by one’s own exertions to
also a condition ? It is more agreeable to traditional tenance.
authority to answer this question in the affirmative; for
maintenance is measured by necessity, and one who is able
to earn anything for himself cannot bo said to bo necessi-
tous. It is not necessary, however, to have a judge’s
order or decree pronouncing the poverty or inability of the
recipient. And though he should be profligate in his
manners, or an infidel, he does not thereby forfeit his right
to maintenance. It is otherwise if he be a slave, for then
his master would bo bound to maintain him.
Ability on the part of the Moonfik or maintainer is a Conditions
condition of the liability to maintenance. When he has a to
surplus over what is nccessaiy for himself, it is first to bo mainten-
applied to the sustenance of his wife, and then if there is
anything over, to the support of his parents and children.
There is no fixed quantity for the maintenance of relatives,
any more than of wives, the criterion being what is necessary
in respect of food, clothes, and residence, with’ something
extra for clothing in tvinter, such as a cloak for warmth while
awake, and a quilt for sleeping. Abstinence from what is
unlawful or indecorous, is not ncccssai^ on the part of the
person to whom maintenance is due.
Maintenance is duo to a person’s father, but not to the Maiuten-
father’s children, for these are in the relation of brothers
and sisters to the maintainer. But it is duo to a person’s childrcu of
children, and their children, for the latter are also the
children of the maintainer.
A person is not bound to repay what may have been An^rs of
laid out by another on his maintenance ; for maintenance
is limited to necessities, and does not constitute a debt recover-
against the maintainor, oven though the judge should®
have actually fixed its amount. True, that if the judge
should have authorised the person entitled to maintenance
to borrow on the, credit of the maintdiner, the amount so
borrowed is a debt against the latter, which it is obligatory
bn him to discharge.
, The maintenance of a -child is incumbent first on
104
MAimuaE.
«c *^Wc tto event of his poverty, it is
incumbent on the fatherVs father hpw remote soever in
ascent. Failing these, it is the duty of the mother, and
in the event of her death or poverty, it is the duty of her
father and mother how high soever. The nearer in all
cases is liable before the more remote, and with equality
of degree they are all partners in the liability.
When the When a person has both parents equally in need of
maintenance, and a surplus over what he requires for
enough for himself sufficient for only one of them, ho should divide
between them equally. So also he should make an
must he equal division between a son and a parent. But when ho
between ^ father and grandfather, or a mother and a graud-
thcin. mother, the whole must be given to the immediate parent.
fetEe^nd ® “<111 ^<18 *1 father and grandfather both in
8on nra good circumstances, the father is liable for his maintenance
llaWc^or of the grandfather. But if ho has a father
hie main- and SOU in good circumstances the liability falls upon them
equally.
A When there is a delay in the dclivei'y of maintenance,
mai'nten- the judge should compel the person who is liable for it,
bee* recusant may imprison him. Further, the
ijelled by maintenance may be taken out of his property ; or if he
imprison- jjjjs only goods or land, they may be lawfully sold, for the
sale of bis maintenance is a debt against him.i
property,
recusant. ' SECTION ThIBD.
0/ the Maintenance of Slaves and of Beasts. “
The maintenance of these is incumbent on ^eir
proprietors.
How With regard to slaves both male and female, their master
slayes arc ^
to be main-
tained. 7 Yet it has been said above that it is not a debt but there the
reference is to arrears, which are not a debt, because maintenance to
a relative is due only in case of necessity, and the necessity, if there
ever was any, is now past, the relative having been able to maintain
himself.
* Bukeemah^o, quadruped, or every animal without distinction.
—{Freytag).
MAINTENANCE OF SLATES.
105
may maintain them out of his own means, or out of the
earnings of the slave.^ The quantity of maintenance is not
fixed, but should comprise a sufficiency of food, condiments,
and clothing, the quality being regulated by what is usual in
the families of masters of like means among the people of
the same city. In this respect no difference is to be made
between the absolute slave, the mooduhhitr and the oom-i~
wnlud. With the slave’s consent, the master may send him
out to work for himself, fixing an amount which he is to
render to the master, and leaving him to take the surplus
for himself. But in no case is it lawful to fix a sum
exceeding the slave’s earnings ; and which will not leave a
surplus sufficient for his maintenance.
With respect to beasts, wdiether fit for food or not,
their owners must supply them with a sufficiency of
pasturage or of dry food, and if they neglect to do so, may
bo compelled to sell, or slaughter them if kept with that
design, or to feed them properly. If the animal has a
young one, it must be allowed a sufficiency of its mother’s
milk until it is fit for pasturage, or other food, when the
milk may bo lawfully taken by the owner.
How
beasts iirc
to bo
treated.
BOOK 11.
OF DIVOnOE.
CHAPTER I.
OP TUIiAK OR REPUDIATION.
Section First.
Its Pillars.
These are four in number ; of which tho first is tho Pirstpillav,
MootvlUk, or Repudiator ; and in him four .conditions ^a,^***'
are required.
Tho first condition is puberty. No regard whatever is Condi-
to bo had to tho words of a boy under ten years of age.*
With respect to one who has attained to that age with
understanding, and repudiates his wife according to tho
soonnnt, or traditions, there is one report that the repu-
diation is legal, but the report is not well authenticated. *
And if the guardian of such an one should take upon him
to* repudiate tho mfc of his ward, there is no doubt that
the act would be invalid, because the right to repudiate
belongs exclusively to a husband ; and the inhibition which
the law imposes on a minor is one which in the natural
course of things will soon be removed. If, however, a
minor should attain to puberty and be deficient in under-
standing, his guardian is not debarred from exercising
the right of repudiation on his behalf vhen it is advisable
with a duo regard to his interests ; and though some of
our doctors have forbidden the exercise of tho guardian’s
' Sou «ttte, p. 4.
108
DIVORCE.
Umler-
stonding :
Free-will
Intention.
authority in such circumstances, yet their opinion has not
been generally received or*adopted. ,
The second condition is understanding ; and repudiation
by an insane person is not valid. It is likewise invalid
Avhen pronounced by one in a state of intoxication, or who
has lost the use of his faculties by temporary stupor, or
drinking a narcotic, as there can be no real intention in such
cases. Nor can a guardian repudiate on behalf of a person
in a state of intoxication, because the cause which prevents
his own exercise of the power is likely soon to be removed,
and he is for the time like one asleep. But a guardian
may repudiate for an insane person ; and if he has no
guardian, the Sultan or ruler, or any person to whom ho
may have delegated the superintendence of such matters,
may repudiate on behalf of the insane person.
The third condition is choice, or free-wili ; and repu-
diation by a person under compulsion is not valid.’ But
three things are necessary to the establishment of com-
pulsion. The com 2 )eller must be able to do what he
threatens. ' There must be strong ground to apprehend
that ho w'ill do what ho threatens if compliance with what
he desires is refused. The threat must involve some
serious injury to the person under compulsion, or to some
one dear to him as his own soul, such as a father or a
child. It makes no difference whether the threat be of
death, or wounding, or abuse, or beating. But in esti-
mating the quantum of abuso which may be endured
without amounting to compulsion, the places where the
compeller and the compelled are residing must be taken
into consideration. A trifling injury is not sufficient to
establish compulsion.
The fourth condition is design, or intention ; and this
is required though an express form of words is also neces-
sary ; insomuch that if there is no intention on the part
of the repudiator, repudiation cannot take effect ; as, for
example, if he werd careless, or asleep, or labouring under
a mistake. And if a person, forgetting that he is married,
According to tlie Hanifite sect it is valid. D., p. 210.
HEPUDIATION.
109
should say, My women are repudiated,’* or, My wife is
repudiated,” and should then rechllect that he is married,
no separation would take place. Or if, after repudiating
his wife, he should say, “ I did not intend it,” outwardly
his assertion must he received and credited, though in-
wardly and in conscience ho is hound hy his intention,
whatever it may really have hcen. This is the case even
though ho should make son\e delay in explaining his inten-
tion, provided that the woman is still in her iddiit, hccanse
it is a declaration of intention.
An absent person may lawfully appoint an agent to Power to
repudiate his wife, without any difference of opinion. And
so also may a hushand who is present with his wife, accord- committed
ing to the most valid opinion. And though the agent-
has said that the appointment of a woman as her husband’s
agent to repudiate herself would not he valid, yet it would
seem that such an appointment is lawful. If a man should or scem-
sayto his wife, ‘‘Repudiate thyself thrice,” and she should
do so only once, it has been said that the repudiation herself. *
would ho void ; while others insist that a single repu-
diation would take effect. And so also if he should say,
“ Repudiate thyself once,” and she should do so three
times, it has been said that the repudiation would bo void ;
but here also others maintain that one would take effect ;
and this opinion is more in conformity with the general
principles of the law.® Second
The second pillar of repudiation is the Mootidlukah, or
Rppudiated ; and in her five conditions are required. diated.
The first condition is that she bo a wife ; for if one Condi-
should repudiate a woman whom he has enjoyed by virtue *
of a right of property, or who is at the time a stranger to That she
him though he should subsequently bo married to her, the
repudiation would have no effect ; so also if a man should
suspend a repudiation on marriage, that is, make it con-
ditional on the occun*ence of that event, the repudiation
would not bo valid, and that, whether a particular woman
were indicated as by saying, “ If I marry such a woman she
® UMuhOt lit^ally, more likely.
110
DIVORCE.
is repudiated,*^ or tlie repudiation is in general terms,' as
by saying “ Every woman whom I marry is repudiated.’* ^
Married by The second condition is that the woman was married
^niS-aet by a permanent contract ; for there can bo no repudiation
of a legalized slave, or of a woman enjoyed under a mootd
or temporary contract, even though she be free.
And not The third condition is that the woman is not in her
m her courscs, or in a nifas ® after childbirth. This condition is
inaw//tf«. applicable only to a woman who has been enjoyed, is
ordinarily subject to the courscs,® and whose husband
is present with her, or if absent, has not been away from
her so long as to be assured that she has passed from the
period of purity ^ in wdiich ho had connubial intercourse
with her to another such period. If a man should
repudiate his wife while they are Ijoth living in the same
city, or ho has been absent from her less than the time
mentioned, and she is then in her courscs or in a nifas,
the repudiation is void, whether ho were aware of the fact
or not. If, again, he has been absent from her so long as
to feel assured that she must have passed from one period
of purity to another, and ho should then repudiate her,
the repudiation would be quite valid, even though they
should both subsequently agi*co that she was actually in
her courses at the time ; so also, if he should have departed
from her during a period of purity ® in which he had not
approached her matrimonially, or if a man should repudiate
a wife with whom he never had connubial intercourse, the
repudiation would in cither case be lawful, though she
* The repudiation would be effectual in both cases, according to
tlio other sect. />., p. et seq,
* The puerperal discharge. The. extreme legal term, according
to the other sect, is forty days (A, note p. 340), but by the SJieeahs
it is limited to ten days {Shnraya, p. 14).
® Aral), llail^ active participle of Imlut which has several mean-
ings. The radical idea seems to be change. I have adopted the
irioaning which tlio context seems to require. In law tiie word is
frequently opposed to pregnant.
^ Arab. Koonu The word is so explained farther on.
* Arab. Toolir, Tliis is the usual term for the time between two
occurrenoes of the courses.
REPUDIATION.
Ill
were actually in her courses at the time. Some of our
lawyers have fixed upon a month as the period which gives
effect to repudiation by an absent man, relying on a tradition
to that effect, which is strengthened by the usual recurrence
of the courses at intervals of that duration. Others of
them, again, have fixed the period at three months in a
reliance on a good tradition of Ahoo Ahtloollah,^ on whom
bo peace. The result of the whole, however, or the truth,
is as we have stated it, even though the time mentioned
should be exceeded. If a husband is present, that is, in
the same city with his wife, without meeting her so as to
know w'hen her courses are on her, ho is to bo accounted
the same as if he were absent.
The fourth condition is that the woman be moostnhrat^^ She must
or purified ; for if a man should repudiate his wife during hlostu- ^
a toohr, or period of purity in which ho has had connubial ^rat ;
intercourse with her, the repudiation w'ould be ineffectual.
This condition is not required in a ydiHmh or woman who
is past child-bearing,^^ nor in one who has not attained to
puberty or is pregnant. With regard again to a moostiihrat,
when three months have passed without any appearance of
the monthly discharge, if such an one is repudiated before
the expiration of the three months, the repudiation is with-
out effect.
The fifth condition is that the viootnllnkah or repudiated And dis-
woman be distinctly indicated, that is, by the man’s saying, i^afeated.
“ Such an one is repudiated,” or by pointing to her in
such a manner as to remove all doubt on the subject. If
he has only one wdfo, and should say, ‘‘My wife is re-
pudiated,” the repudiation would be valid, as there is no
room for ambiguity. But if ho has two or more wives,
and should say, “ My wife is repudiated,” he must intend
some one of them in particular to give any effect to the
repudiation; and his explanation of the one whom he
® The Imam Jaafer Sadik.
Participle from istihray purification. The object of the condi-
tion seems to be to prevent a confusion of seed, and consequent doubt
of paternity, if the woman should marry again, and have a child.
“ See|?o«^ p. Ifi2.
112
DIVOR013.
intended must be received. If, again, he had no particular
one in his mind, or used* the words, without any positive
intention, some of our doctors maintain that they would
bo entirely nugatory for want of distinct indication, while
others insist that there would be a valid repudiation, and
that the particular woman must bo determined by lot,— an
opinion which seems to be more agreeable to the general
principles of the law. If he should say, “ This one is
repudiated, or this one,” ho may, according to the Sheikh,
apply the repudiation to whichever of them ho pleases ;
but many of our doctors insist that it is void for want of
specification ; while, if he should say, “ This one is re-
pudiated, or this one and this one,” the third would bo
certainly repudiated, and of the other two he might apply
the repudiation to either at his pleasure. In the event
of his death one of them must bo token by lot. Many,
however, are of opinion that in such a case the alternative
is between the first and the two last together ; so that ho
must determine for either the first or for the two last. In
all the cases it is obvious that the difficulty arises from
the want of specification, or a compliance with the con-
dition under consideration. If a person, looking upon his
mfo and a strange w'oman, should say, “ One of you two
is repudiated,” and should add, “ I intended the stranger,”
his assertion must be accepted. But if, having a wife
and a maid both named Sooda, ho] should say, “ Soodn is
repudiated,” and then assert, “ I intended the maid,” his
word would not be accepted. For, in the first case, the
expression “ One of you two ” is equally applicable to the
wife and the strange woman, as both are capable of being
repudiated, but in the second case, where the repudiation
is made to depend on the name, it must be restricted to
the wife, as she is the only person to whom the repudiation
can bo applied. If a person, supposing a stranger to bo
his wife, should say to her, “ Thou art repudiated,” his
wife would not be repudiated, for he must be assumed to
have intended the person addressed. And if, having two
wives, Zeinuh and Amrah, he should say, ** O Zeinub,"
and Amrah should answer, ** Here am I,” whereopon ho
BEPUDIATION.
113
says, Thou art ropudiated,” the person intended would
be repudiated. If he intonde(i the one that answered,
supposing her to bo Zeinuh, the Sheikh lias said that
Zeinub would bo repudiated. But there is some difficulty
in the case ; for the repudiation was directed to the person
who answered, only on the supposition that she was
Zeinuh; she therefore cannot bo repudiated for want of
intention; nor can Zeinuh^ for the repudiation was not
directed to her, but to the other.
The third pillar of repudiation is its Form. form/
As a general rule, marriage, being a chaste'® or pro- Itscomli-
tected condition, favoured by the law, and in its own
nature not admitting of being dissolved,'® it is necessary
in taking off or removing the tie to adhere strictly to the
terms of the legal permission. The form of words specially Words
appointed for that purpose is, ‘‘ Thou art repudiated,” oi'^ccfally^
“ Such an one,” or ‘‘ This person,” or any similar word required ;
clearly indicative of the individual who is intended to bo
repudiated. And if a man should say, ‘‘ Thou art the
repudiation,” or ^‘repudiated,” or “among the repudiated,”
the words would bo without effect, even though ho intended
to repudiate thereby. So also they would bo ineffectual
if ho were to say, “ A repudiated person.” The Sheikh,
however, has said that in this case repudiation would take
effect if intended ; but the opinion is not supported by the
grammatical construction of the phrase. On the other •
hand, ho has said that it would not take effect if a man
weiy) to say, “I have repudiated such an one;” but this
also is attended with some difficulty, arising from the fact
that if the question wore asked, “ Is thy wife repudiated ? ”
and the person addressed should answer “ Yes,” there *
would be an effectual repudiation.
Repudiation cannot be effected by writing,'® nor in any ?*""*o*
other language than the Arabic when there is ability tooriu^auy^
** defence, protection, chastity.
That is, it does not admit of Ehalut, like sale.* See Im. i).,
p. 108.
** Arab. Unti Talikoon,
J® It may according to the H^ifites. D., p. 238.
part II.*
I
114
DIVOBCE.
other Ian- pi'onounce tbe words specially appointed, nor by signs
Arabic*”* ®*ccpt where the pai-ty is hnable to speak. If ho is dumb,
repudiation may bo effected by any signs sufficiently
indicative of his purpose. And, though it cannot be given
in writing by one who is present and able to pronounce the
proper words, yet if ho is unable to do so and writes them,
fully intending rejmdiation, it takes effect and is quite valid.
Some persons have maintained that a Avifo may bo lawfully
repudiated in writing by her husband when ho is absent
from her ; but this opinion is not to be relied upon. And
Words if one should say to his wife, “Thou art vacated,” or
rIot*sttffi- “ reins are on thy neck,” or “ Betake thyself
cient. to thy people,” or “ Thou ai-t absolutely separated,” or
“unlawful,” or “cut off,” the expressions would bo quite
nugatory, and no repudiation take place, whether it were
intended or not.*" If he should say “ Count,” intending
Tulc'ik thereby, it is maintained that there would bo a valid
repudiation, and there is a tradition to that effect, recorded
by lltdbee and Moohummud, from Aboo Abdoollah, on whom
be peace; 'but this has boon disputed by many of our
doctors, whose opinion is more in accordance with the general
principles of tho law.
A right of When a person gives his wife an option, intending that
^^toa repudiate herself, and she chooses him, or remains
wife is ap- silent without looking aside, nothing follows. And even if
nota'*^' immediately to choose herself, though some of our
power to doctors are of opinion that there would bo an absolute,
others a revocable repudiation, a third party maintains
that in this case also the choice would bo ineffectual ; and
their opinion is the most common or generally received.
If a person were asked, “ Hast thou repudiated such a
cdby affir- person ?” and ho should answer “Yes,” there would be a
^Mrion* tuWe. But not so if the question were, “ Hast thou
<‘lla8ttliou separated,” or “vacated” or “released?” and he should
^ answer in tho affirmative ; for then nothing would follow.
The form TuWe, in respect of its form, must be entirely free from
“ If intended, they would be sufficient, according to the TTatiifitoa.
D., p. 228 .
V
BMPDDUTION.
115
any condition or description, according to the most common of tuUk
opinion ; " for I “ taka no account of those who think differ-
ently on this subject. And even though the husband, in free from
pronouncing the repudiation, should merely explain himself “ joaciip-
by saying, “ twice ” or “ thrice,*' some insist that it would from
be void. Others, however, maintain that a single repudia-
tion would take effect by reason of the woi’d “ repudiated,”
the rest being surplusage according to them; and this
opinion is supported by the more common or generally
received of two traditions. If ho should say, “ Thou art
repudiated for the noonniit” the repudiation would bo valid,
supposing that the woman were pure at the time ; and so
also if his words were “ for the Inukte." But in this case
it were better to say that the repudiation would not take
eflect, because wo don’t allow that kind of tuWc, and the
words would bo without meaning.®’
Further, if a husband should say to his wife, “ Thou Dlustra-
art repudiated this very instant, if repudiation has effect
upon thee,” the Sheikh has said that there would bo no
tuWi, by reason of its being made dependent oh the con-
dition ; and this is right, if the repudiator were not aware
of the woman’s state at the time. But if ho knew that she
were in a state to be legally repudiated, effect should be
given to his words; for though there is a condition in
appearance, there is none in reality. If he should say,
“ Thou art repudiated the most just of repudiations,” or .
“ the most perfect,” or “ the best,” or “ the worst,” or
“ the best and worst,” tho repudiation would be valid, as
it is not impaired by the words suporadded to it. So also
it would bo valid if he wore to say, “ the full of Mecca,” or
“ the full of tho world.” If ho should say, “ To the con-
tentment of such an one,” intending a condition thereby,
or that the repudiation should bo dependent on tho person’s
will, it would be void. Otherwise, if ho had no such
This is opposed to the doctrine of the Hanifites. D., cap. iv.
and ciip. iL, sect. 3.
" The autlior of the Shuraya,
'* Tahir, that is, not in her coorses.
“ Soeiwrt, p. 118. /
116
DIYOBCE.
intention, it would take effect, according to his purpose.
So also, if he should say, In thou enterost into the house,
thou art repudiated,” applying the vowel kiisrah (i) to tho
first letter of the word (so as to make it equivalent to if),
there would he no repudiation, while if the vowolfutha («)
were ai^plicd to the first letter of the word, so as to make it
sound nn (or that), tho repudiation would bo quite valid, pro-
vided that ho knew tho distinction between the two sounds,
and intended that his wife should bo repudiated. If ho
should say, “ I am repudiated to thee,” tho words would
have no effect, as a man is not a fit subject for repudiation.
Nor if he should say, “ Thou art repudiated half,” or “ a
fourth,” or “ a sixth of a repudiation,” would the words
have any effect, for they do not amount to one whole
repudiation. If ho should say, “ Thou art repudiated
(talik),” and then add, “ I intended to have said, ‘ Thou
art pure (tahir),' " the explanation is to bo accepted out-
wardly, but inwardly and in conscience he is bound by his
real intention, whatever it may have been. If tho expres-
sions were, “ Thy hand,” or “ Thy foot is repudiated,” they
would be wholly without effect. So also, if ho were to say,
“ Thy head,” or “ thy bosom,” or “ thy face,” or “ thy
half,” or “ tliy third,” or “ two-thirds,” tho expressions
would, in like manner, be ineffectual.’’^ If he should say,
“ Thou art repudiated before repudiation,” or ** after it,”
or “ before it,” or “ with it,” nothing would follow, w'hether
she were an enjoyed wife or not. But if it were said that
a single repudiation would take effect on his saying,
“ Bepudiated with repudiation,” or “ after it,” or “ upon
it,” and that there would be none on his saying, ** before
repudiation,” or “ after repudiation,” that would bo right
or proper.*® If, again, he were to say, “ Bepudiated two
halves,” or throe thirds of a repudiation,” there would
bo none, acccording to tho Sheikh. But here, also, if it were
said that there would bo a repudiation, by force of the
*‘ Otherwise, according to tho Hanifites. D., p. 215.
” I have translated the words literally. The distinction seems
to depend on the position of the te^ “ repudiation."
BEPUDIATIOK.
117
words “Thou art repudiated,” ^and that the rest is sur-
plusage, that would he right or proper. Not so, however,
if the husband should say, “ A half of two repudiations.”
Further, tho Sheikh has said that if a man should say Continued,
to his four wives, “I have effected four repudiations
between you four,” each one of tliem would bo repudiated.
But the opinion is not free from doubt and diiSculty. If,
again, a man were to say, ** Thou art repudiated, three
except three,” one repudiation would bo valid, by virtue of
the first part of tho expression, if such were his intention,
and tho exception would be void. If he should say,
“ Bepudiated without repudiation,” intending revocation
thereby, it would be valid, because the denial of a tuldk is
equivalent to revocation ; while if ho said, “ Repudiation
except repudiation,” tho exception would be surplusage,
and repudiation take effect, bj virtue of tho words, “ Thou
art repudiated ” (supposed to precede the others). If he
should say, “ Zeinuh is repudiated,” and then add, “ I
meant Amrah," tho explanation is to bo received, suppos-
ing both tho women to bo his wives. And if ho say,
“ Zeinuh (bill) Amrah,’' both are repudiated together, for
each was intended at the time of his naming them. But
this is attended with some difficulty, arising from tho form
of tho expression.
Tho fourth pillar of repudiation is Testimony;*® and it Fonrtii
is necessary that two witnesses should bo present and hear
tho repudiation given, whether they are called upon to witnesses
attpst it or not. It is a condition essential to the validity
of a tuldk that the witnesses should hear the actual words.
So that if they are merely present, repudiation does not
take effect, though all other conditions are complied with.
So also there can be none with only one witness, though
ho bo a just person, nor oven with two witnesses if they
are not just, or are reprobates. Nay, it is required that And tho
two witnesses of known probity should be present. Some mMt
of our lawyers, however, think it sufficient tliat tho wit-
nesses are Mooalims ; hut tho first opinion is better
*' Tills is not required by tho Honilitos.
118
DIVORCE.
founded on traditional authority. If one of the witnesses
should testify to the constitution of the tuldk, and the
other should then testify to it separately from the first,
repudiation would not take effect. But when they testify
to an acknowledgment of the fact, it is not necessary that
their testimony should he given together. Yet, if one
should testify to the fact of the ttildk, and the other to
an acknowledgment of it, their testimony could not be
received.
The testi- The testimony of women cannot be received to repu-
XSen not whether they are alone or together with men. If
saiHcient. a man should repudiate his wife without witnesses, and
then repudiate her again when witnesses are present, the
first repudiation would go for nothing. And the true time
for a tiilak taking effect is when the \vitnesses arc present,
provided that the appropriate words are employed.
Two
forms ;
The bi-
diiut, of ■
which
there are
three
kinds.
But all arc
void.
The Sootf
nut:
Three
kinds :
Bain, or
irrevoc-
able.
Section Second.
Of the Different Kiiuls of Tuldk or Ue^idiatlon.
The term Tnhik includes the Biddut and the Soonnut
forms of repudiation. Of the Biddut ^ or new and heretical
form, there are three different kinds. The first is the repu-
diation of an enjoyed wife during her courses, or a nifas,
w^hilo her husband is present with her, or if absent from
her, when his absence has been short of the time con-
ditioned or required in such cases.®^ The second is the
repudiation of a wife during a toohr, or period of purity,
in which there has been connubial intercourse between the
parties. And the third is, three repudiations without any
intermediate revocation. All these forms of tuldk are void
with us,®^ no repudiation taking effect in any of the cases.
Of the Soonnut, or regular form of Tuldk, there ard
also three different kinds, — the Bdin or absolute, the Rujdee
or revocable, and the TvMk-ool-iddut, or repudiation of the
iddut. The Bdin or absolute is that with respect to which
“ See ante, p. 110.
^ That is, tlie Sheeah sect. According to the Honifites they are
all valid, though irregular. /)., p.^}^07.
EEPUDUTION.
119
the husband has no power of revocation ; and of it there
are- six different species. The ^rst is when tho wife who
is repudiated is one with whom connubial intercourse has
never taken place. The second is when she is a ydissah,
or past child-bearing. Tho third is when she has not yet
attained to puberty. The fourth and fifth are when she is
mookhttdlah^^ or moobarat, that is, released or freed for a
ransom, so long as she has not reclaimed the ransom for
which tho release or freedom was given. The sixth is
when the wife is repudiated three times with two inter-
vening revocations.®’'
The Tuhik livjnee is that in which the husband has the
power of revocation whether ho exercises it or not.®®
The Tiildk-ooUiddiit, or repudiation of the iddiitf is
after the following manner: — A man repudiates his wife
under the requisite conditions, ho then recalls her before
the expiration of the idduty has connubial intercourse with
her, and repudiates her again, but in another toohr than
that in which tho intercourse took place, recalls her a
second time, has intercourse with her, and repudiates her
a third time, but in a subsequent toohr. She is now
rendered unlawful to him till she has married another
husband. If she should do so, be released from him,
and her first husband should remarry her, and repeat tho
series of repudiations as at first, she would become a
second time unlawful to him until married to another
husband. And if this also were done and she were again
frf e, and tho first husband should marry her a third time,
and repeat tho series of repudiations, she would become,
after the ninth, unlawful to him for over.-‘-^ It is to be
observed that the tuldk of the iddut does not take eficct
unless there has been connubial intercourse after each
” Wife released by khoold, for wliich and mooharat, see posty
eh. iii,
^ To these may bo added the ordinaiy tuldky when given in
oxchangc for property. Sec p. 137.
Tho power of revocation lasts till the expiration of the idduty
after which tho repudiation becomes absolute.
^ ^ This kind of repudiation is unlmown to Uio Honilites.
Bujaee, or
revocable.
Tuldh‘Oot-
iddut
described.
Kenders
her per-
petually
unlawful
to the re-
pudiator.
120
DIVORCE.
Three rc-
puiliations
render a
woman un-
lawful to
the repn-
diator.
Repudia-
tions after
completion
of the
idduty
do not
render a
woman
perpetu-
ally unlaw-
ful, though
they
should
amount to
nine.
A pregnant
wife may,
after revo-
cation, be
again re-'
))udiated
for the
iddut.
So also, a
wife that
is not preg-
nant.
revocation. If bo sbonld repudiate her before snob inter-
course, the repudiation ^ould indeed be valid ; but it
would not bo a tuUk or repudiation of the iddwt.
Every woman on whom three repudiations have been
fulfilled is rendered unlawful to the repudiator until she
marries another husband ; and it makes no difiference
whether he had enjoyed her or not, or whether be had
recalled her or abandoned her.
MisceUaneoua Cam.
Pint. A man repudiates his wife and sho completes
her iddxit ; ho then marries her a second time, repudiates
her again, and leaves her to completo her iddut; after
which he marries her a third time, and a third time
repudiates her. She now becomes unlawful to him till
sho has been manded to another husband. After which, if
separated from him, and her iddut for him has expired, her
first husband may lawfully return to her, that is, marry
her again ; and a wife so treated is not perpetually pro-
hibited, even after the ninth repudiation. But the iddut
which she has to observe does not. prevent her from
becoming immediately prohibited to him after the third,
that is, until she has been married to another.
Second. When a man has repudiated a pregnant wife,
and recalled her, he may lawfully have connubial inter-
course with her, and then repudiate her a second time
for the iddut by general consent. Some maintain that
it is unlawful by the eoonnut ; but the opinion in favour
of its legality is more agreeable to the principles of law.
Third. When a man has repudiated a wife that is not
pregnant, and recalled her, if he then has connubial inter-
course with her, and repudiates her again in another
toohr, the repudiation is valid without any difference of
opinion. But if he repudiate her in the other toohr, mth-
out having previously had intercourse with her, there are
two traditions upon the point — one of which denies the
efficacy of the repudiation, while according to the other
and more valid tradition, it takes effect. Assuming the
latter view to be correct, i^he ^should now recall her agtun
REPUDIATION.
121
and repudiate her a third time in another toohvy she would
become prohibited to, him until* married to another man.
In like manner, if he should repudiate her after the revo-
cation without having connubial intercourse with her in
the first toohr, there are two traditions upon this point
also ; but here a preference is 'given to that which requires
that the repudiations should be in different toohrs, though
connubial intercourse may not have taken place ; while if
it has, the repudiation would be positively unlawful, except
when given in a second toohr, if the repudiated person
be one with respect to whom istihra, or purification, is
necessary.
Fourth. When a repudiator is in doubt as to the
efficiency of a repudiation he is not obliged to repeat it to tion need
remove the doubt, and the marriage remains as before. not be rc-
r ijth. When a man who has repudiated his wife while Repudia-
absont from her, enters into her apartment on his return,
and then claims that the repudiation was effective, his claim cannot bo
is not to bo received, because it is to be presumed that a ^
Mussulman’s acts are in accordance with the law, and his resumes
claim gives the lie to what is tantamount to proof. Accord- epbabita-
ingly, if there is a child it is affiliated to him* his wife.
Sixth. When a man absent from his wife has repudiated
her, and desires to marry her sister, or a fourth wife, he repudiates
must wait for nine months for the possibility of his wife’s ope of four
1. A wives must
being pregnant. Some of our doctors for greater caution wait for
insist that ho should ^vait for a full year, having a view to
the possible pregnancy of a moostnhrat, which occasionally before he
happens. But if he knew that she was not pregnant at
the time of the repudiation, three courses and three months
are sufficient.
122
DIYOBOE.
CHAPTER n.
OP APPENDAOBS TO REPUDIATION.
Section First.
Of Repudiatimi by a Sick Man.
Valid, It is abominable for a sick man to repudiate his wife ; yet
if he should do so the repudiation is valid, and he is
able. entitled to a share in her estate if she should happen to
Its effect die during the iddut, and the revocation wore revocable.
r?ghte repudiation were bdin, or
ofinherib- absolute, oc hor death should not occur till after the
expiration of the iddut. She, however, has a right to
and wife, participate ii\ his estate if ho should die at any time within
a year from the repudiation, whether it were revocable or
absolute, provided that she has not married in the mean-
time, nor ho has recovered from the disease in which the
repudiation was given. If he should recover, fall sick again,
and then die, her right of inheritance would bo lost, unless
she were still in her iddut for a revocable repudiation.
Ills word If he should say, “ I repudiated three times when in
800^ health,” his word is to bo received, and it bars her
hesaysthat right of inheritance, though it would seem that no credit
dfatod^er Ought to be given to his word as a^nst her. And if he
in health, should slander her, being sick at the time, and should go
Zidnin through the form of lidn, or imprecation, against her,
aickness. ^hen she would be absolutely divorced by the lidn,^ she
‘ According to the Slieeahs, tliis ia the immodiato effect of tho U&n
(see pott, p. 157), though by the Hanifito code there is no separation
of the parties without a divorce by the husband or dedlee of the
judge. D., p. 330. ,
APPENDAGES TO BEPUDIATION.
123
would have no right of inheritance in virtue of the special
effect of a repudiation in sickness. But it may be asked
would she not have such a right on account of the suspi-
cion which attaches to his slandering her in such circum-
stances ? This question has been answered in the
affirmative. It would rather seem, however, that the
usual effect of a repudiation in sickness should be given
to his act without any regard to the suspicion attaching
to it. There is also a doubt of her right to inherit when
repudiated on her own solicitation. And here it is more
in accordance with the general principles of law to say
that her right of inheritance is lost.® So also when she
has been released from the marriage tie by a khoold or
moohardU
Its effect
on wife’s
right of in-
heritance.
Wife repu-
diated in
sickness at
her own
request
does not
inherit.
Nor one
released by
khoold.
Branches from the Precediwj,
First. If a man should repudiate his slave wife revoc- A sIhtc re-
ally, and she is emancipated during the iddut, and he
then dies while labouring under the disease, she inherits band, but
during the hldut, but not after its expiration, on account pXd*'in
of the flaw in her condition at tho time of the repudiation.’ the
Yet, if it wero said that she docs inherit, that would be inherit
proper, and even though tho divorce were irrevocable.
Some, however, contend that she has no right whatever to
inherit, because she had no ahleetit, or legal status, at the
time of tho repudiation. So also if one should ropu-
diato a kitaheeah who is afterwards converted to tho
Mussulman religion.^
Second. When a repudiated woman claims or alleges In n
that the repudiation was given to her by her deceased
husband when ho was sick, and tho fact is denied by his pudiation
heir, who alleges that he was in good health at the time,
’ Such is tlie Hauifito doctrine in that case. D., p. 378.
* According to tho Ilanilito codo, that would prevent her inherit-
ing even during tho iddut. D., p. 378.
* That is, she would in like manner inherit during tlie iddut ;
her case,' according to both codes, being similar to that of the eman-
cipated slave. ■ •
124
DI V ORGS •
orsidcness, tho word of the heir is to be received,* because the pro*
j^g]^°^-g^bahilities on either side are equal, and it is a principle of
to be pre- law that there is no right of inheritance except by esta-
fened. a sufficient cause for it, such as consanguinity or
marriage.
Case of Third. If a man should repudiate four wives during
ropa^M, illness, marry four others, consummate with them, and
and other then die, tho fourth of his estate, or in tho case of his
rted, by a having a child, the eighth of it, would be equally divided
sick man. between them all.
t
Section Second.
Ilm the Prohibition incurred by three Repudiations
is removed.
A woman When a woman has been repudiated three times with
A^thnes requisite conditions, she is rendered unlawful to tho
must bo repndiator until she has been married to another husband,
“j”'®^^’and in removing tho prohibition regard must be had to
joyed by, four conditions : — Ist, the new husband must be adult,
hM^d h)r though there is some difference of opinion in respect to
before eho- a moorahik, or boy approaching to puberty, yet it is more
married'by agreeable to the principles of law to say that he is not
Ae repu- competent to legalize the woman to her first husband ; “
2nd, the new husband must have carnal knowledge of the
woman in the natural way, so as to require ablution ; Srd,
' this must he under a contract, and not merely by virtue of
a right of property, or of permission from her master;
4th, the contract must be permanent, and not by way Of
mootd, or temporary. When all these conditions Wo
been fulfilled, the prohibition incurred by three repudia*
tions is removed.
Sach mar-
riage de-
stroys the
effect of all
previous
repudia-
tions,
though less
than three.
With regard to the value of a second marriage in
effacing the effect of any number of repudiations less than
three, there are two traditions. The most common or
generally received of these is in favour of the extinction.
So that, if a woman who was once repudiated should be
* The preference is given to her words by the Hanifites. i7.,p.382.
* He is competent according to tl^e Hanifites. P., p. 290.
‘ S
APPENDAGES TO BBPUDIATION.
125
married to another man, and, after the dissolution of that -
marriago, should bo ;re-married*by her first husband, she
would abide with him on a fresh footing as to three .
repudiations, tho effect of tho first repudiation being
cancelled by the intermediate maniago to another person.
If a Mussulman should repudiate his Zimmeeah wife Moitwro
three times, and, after the expiration of her iddut, she is
married to a Zimmee, then absolutely separated from him, cientintho
and finally converted to tho faith, it is quite lawful for tho z^meeah.
first husband to marry her by a now contract.
When a bondwoman has been twice repudiated, sho is A bond-
rendered unlawful to tho repudiator until she has been
married to another husband, whether sho were the wife of dialed
a freeman or a slave ; and carnal intercom’se with her ^n^ed
master is not sufficient to remove tho prohibition ; neither «wl «»-
is it removed by the repudiator himself becoming her pro- another^
priotor, because tho prohibition was incurred previous to
his acquisition of tho right. If one should repudiate his ^muTied
slave wife, and she is then emancipated, after which he •J'®
marries her a second time or revokes the repudiation, sho ^ ‘
remains witli him on the single repudiation as connected
with her former condition of slavery, so that, if he should
repudiate her again, sho would become unlawful to him
until married to another husband.
iVn eunuch is competent to legalizo a thrice-repudiated An cnnnch
woman to the repudiator when ho has had carnal inter-
course •with her. But there is one tradition opposed to legalize a
, . . woman.
his sufficiency.
Intercourse with tho new husband in tho natural way. Emission
though it should take place without omission, is sufficient
to legalize tho thrice-repudiated woman, becauso the act is
the occasion of mutual pleasure to the parties.
If the legalizer, after marrying a repudiated woman. Inter-
should, before connubial intercourse with her, apostatize
from tho fiiith, any subsequent intercourse with her during not snifi-
his apostasy would not be sufficient to render her lawful to
her first husband, becauso the contract was cancelled by
his apostasy.^
’ See.oRtf, p. 2U.
126
DIVOBCE.
When the If, after the lapse of some time, a thrice-repu-
diated woman should allege that she, was duly married to
pndiatc^ another husband, and, after being completely separated
from him, had fulfilled her iddut, and if all the occuiTences
ditedasto could possibly have taken place in the interval since the
her ^ving repudiation, some of our doctors maintain that her
been sub- ^yord must be received, because in the whole matter a fact
mmiedf is involved, viz. coition, which cannot otherwise bo ascer-
tained. There is one tradition, however, to the efiect that
it is only when she is a trustworthy person that her asser-
tion is to be credited in such circumstances.
And the When the logalizer has entered into the woman’s
apartment, and she alleges that connubial intercourse
mated. took place between them, that is sufficient to render her
lawful to her first husband, provided that the legalizcr
assents to the assertion. When, on the other hand, ho
contradicts her, some of our doctors are of opinion that tlio
conduct of the first husband should bo regulated by his
estimate of the probability of her or of the other party’s
speaking the truth. It would be better, however, to say
that he should in all cases act in dependence on her asser-
tion, from the impossibility of obtaining any other evidence
of the fiict than her own word.
Doubt as If connection with the Icgalizer should take place under
to conned circumstances when connubial intercourse is interdicted, as
legalizcr during pilgrimage or an obligatory fast, some of our doctors
opinion that the woman would not be rendered
cirenm- lawful to her husband, because the act being prohibited,
v^n^on- cS'^Dot bo supposed to bo within the scope of the legislator’s
uubialin- intention. Others, however, insist that she would be
is^U-° rendered lawful by the establishment of marriage on a
bited. valid contract.
Section Thibd.
Of Rujdt or Revocation.*
May be Tuldi or repudiation may be validly revoked in words,
by saying, “I have recced thee,” or in deed, as by
by deed. $ Literally, return ; as if the inan returned to his wife, or restored
her to her former position. .
APPENDAGES TO REPUDIATION.
127
connubial intercourse; and even though the husband
should only touch or l(iss his repudiated wife with desire,
that would bo a revocation. Permission by the repudiated
woman is not a necessary preliminary to the revocation,
for she is still his wife. And oven a more denial of tho
repudiation would bo equivalent to revocation, for it implies
a retention of tho woman as his wife.
It is not necessary though proper to have witnesses to
a verbal revocation. 'aary.
If a husband should say to his wife, “ I have recalled
thee when thou wilt or if thou wilt,” the revocation would dependent
not take effect, oven though she should answer, “ I have
Avilled." This, however, is open to doul)t.
If a man should repudiate his wife and recall her after or after
she has apostatized from tho faith, the revocation would not
bo valid, as a marriage ah initio in such circumstances, that tized
is, with an apostate, would not be valid.” On this point, how-
ever, there is room for doubt, arising from tho consideration
that tho woman revocably repudiated is still a wife and if
she should return to tho faith the revocation would revive.
If a man having a Zimmeeah wife should repudiate Similar
her revocably, and then recall her during her uldvt, it has
been said that tho revocation would not be lawful, forw-oimmis
revocation is like a now contract. But it would seem that “
the revocation is lawful, as the woman has never ceased to
be liis wife, and tho revocation is rather to bo viewed as a
prolongation of tho existing contract.
Bovocation by a dumb man may bo effected by intel- Revocation
ligible signs. Some say that ho ought to raise tho veil
from off her face, but this opinion is rarely entertained.
When a man has repudiated his wife and recalled her, in a dis-
but she denies that the marriage was ever consummated,
with a view to avoid the necessity of idditf,” and to render ination,tho
tho repudiation irrevocable, while he insists on the other to
bo re-
’ An apostate is legally disqualified from contracting marriage.
Sharaya, p. 681.
See above,
" It is only on on enje^ed wife that iddat is incumbent (post,
p. 100).
128
DIVOBCK.
hand that consummation had taken place, hor word and
oath aro to be received, for the zabir or apparent is in
favour of her allegation.
So also When a Avoman claims that her iddut has expired ** by
Occurrence of the courses, and the time admits of the fact
is as to being so, while the man denies its expiration, her word and
of oath are to bo received. But if the claim be that the
courses, iddut had expired by lapse of months, his assertion is to
when^'is preferred ; for hero tlio difference is merely as to the
bj montlis. time Avhen the repudiation took effect. If again, the
husband should claim that the iddut had cxpii-ed, the
word of the Avife is to bo received ; for the original state of
things is the continuance of the marriage, Avhich he is
trying to impeach.
In disputes If the woman Avas pregnant and claims that delivery
nanc/tmd* Iras taken place, her word is to bo receh^ed Avithout requiring
delivery, her to produce the infant. But if the dispute be as to the
whoso ^ ^
word is to f>rct of her having been pregnant, which the husband denies,
and she produces an infant which he denies to be his
ccivcu *
offspring, the word rests with him, becauso tho fact is one
which admits of proof by witnesses. If she claims tho
expiration of the iddut, and he alleges that ho recalled her
before its expiration, the word of the woman is to be
preferred. But if he has recalled her, and she then claims
after the revocation that tho iddut had expired, his word is
to be received, since tho original state of things is the
validity of tho iddut.
In a di«- If tho husband of a slave should claim that he recalled
tetweeu her during her iddut, and she confirms the allegation, Avhile
^d oud <loniod by her master, who insists that tho iddut had
master of a expired before tho revocation, the word of tho husband is to
reA-o^on ^ received; and some of our doctors aro of opinion that
during he is not required to confirm his assertion by his oath,
since tho right of marriage is sustained by both tho
bereceived. spouses ; but this opinion is liable to doubt.
The poAvor of revocation terminates with the expiration of the
iddut, as is obvious from tho introduction, at this place, of the
remaining paragraphs of this section, which would otherwise more
properly belong to the chapter on iddut.
( 129 )
CHAPTER III.
Of KhoolA and MoobabAt.
Section First.
0/ Khoola : its Form, Ransom, Conditions and Laws.
In respect of form it ia.as if one should saj', “ Khulatoki Form.
hiza" (“I have khooUi'd thee for so much”), or
“Fulamitoon nwokhtullatoon via kuza" {“ Such an one is
kkoold'd for so and so ”) ;* and if it bo asked whether the
khoold is effected by this alone, the answer must bo that
the tradition is to that effect. The Sheikh, however, insists
that it is not effected by those words unless they are
followed up by tuldk or repudiation. And there is no doubt
tliat it is not effected by the words “ Fadeetoki ” (“ I have
liberated thee for a ransom”) without the addition of the
word Uddk ! nor by the words Fasiikhtoki” (“I have
cancelled thee”) ; “ Abnntoki" (“I have separated thee”),
or “ ButUittoki” (“I have cut thee off”); nor by tukail
(dissolution).
Supposing that the word Uioolu is sufficient, another
question arises whether it is a cancellation of the marriage jg ,
contractor a repudiation. According to A I MooHvza it of
is the latter, and his opinion is supported by tradition, ngl con-
The Sheikh, however, prefers to consider it as a cancellation ; *
and in this view of it no account can ho taken of it in the tion.
number of repudiations.
' The author has not given any definition of khoola, and I forbear
to translate these terms, otlierwiso than by patting tliem into an
English form, though, as it will appear a little fartlier on that hhnold
has the effect of on absolute divorce, they might very well bo ren-
dered, “ I have divorced thee,” or “ Such an one is divorced.”
• •PART II. , ‘ * K
180
DIVOBCE.
a or repudiation when given for a ransom takes
ransom is effect absolutely, though bo use has been made of the word
absolnto. Jchoold. If a woman should ask her husband for a tuldk
in exchange for something, and he should khooUi her with-
out using the word tuUik, it would not take effect according
to either of the opinions before mentioned. Wliile, if sho
asked for a khooU in exchange for something, and he gave
her a tuldk for it, she would not bo liable for the exchange,
according to those who think that khooUi by itself is a
cancellation, and liable, according to those who consider it
as a repudiation, or as not requiring the addition of the
word tuldk. Again, if the husband should say, “ Thou art
repudiated for a thousand,” or, ‘‘with a liability for a
thousand,” the repudiation would take effect revocably
without any obligation on her part for tho thousand, even
though sho should afterwards voluntarily give a security
for it, as it would bo a security for what was not due.
And if sho should actually pay the amount, it could only
be considered as a new gift, and tho repudiation would
asked for by no means become absolute or irrevocable. Further,
”vcn ta- ® woman says, “ Eepudiate me for' a thousand,” the
mediately ; answer should be immediate ; for if there is any delay the
?t is^v^ husband would not be entitled to tho exchange, and tho
able. repudiation, if given, would be revocable,
ll. The With regard to the ransom, whatever may bo validly
ransom . dower is also valid as the ransom of khooUl ; and
ftaited • amount, so that it may lawfully ex-
ceed whatever was given to the woman as her dower or on
any other account. When the ransom is not produced,
its kind, quality, and quantity must be mentioned ; but if
produced mere inspection is sufficient. When it is money
it must be paid in the coin most prevalent in the city,
unless some particular currency is mentioned, when it must
be paid in that. Where, again, the khooU is for a
thousand, and nothing has been said to show what was the
he intention of the parties, the lihooU is invalid. So also it is
thing that invalid, when the ransom is something the property in
to which is unlawful to Mussulmans, as wine for instance.
Urn. Some say, however, that the khooUl should take ^ect
KUOOIiA.
131
rovocably ; which would he right it were followed hy a
tiH/ik ; but otherwise, it is better to say that the klwohl is
void. If the kliooM was for vinegar, and it proves to bo
wine, tho transaction is valid, but the husband is entitled
to have tho full quantity in vinegar. Where, however, tho
ransom is the faitiis of which a beast or a female slave is
pregnant, tho khooVi is not valid.
Tho ransom may be disbursed by tho w'cman herself May be
or by her agent, or any’ono who has become her security
for it, with her permission. But whether it may bo paid her agent,
by a more voluntary is liable to doubt, the better opinion
being against such payment. Yet if a person should say,
“ llepudiate her for a thousand of her own money op my
guarantee,” or “ for this slave of hors on my guarantee,”
the transaction would bo valid ; insomuch that, though she
should bo unwilling to deliver what was specified, the khoold
would be valid, and the voluntary liable on his guarantee.
Upon this point, however, there is room for doubt.
If a woman should enter into a khoold during her death Klmld
illness, the transaction would bo valid though tho ransom
were in excess of a third of her estate. But here it is entered
maintained by some of our doctors that any excess over s'!,
the proper dower must come out of tho third ; and the her last
opinion seems to bo in accordance with the principles of fo"
law. If the ransom bo the suckling of tho husband’s child, than a
it is valid provided that tho time during which the suckling
is to last is distinctly specified. So also, if a man should
repudiate his wife in exchange for the child’s maintenance,
the transaction would in like manner be valid, subject to
the like condition that the quantity of tho food and clothing
which may be required, and the time for which they are
to bo provided, ore all distinctly specified. If in either of
the last two cases the child should die before tho com-
pletion of the time, tho repudiator would be entitled to
a suitable compensation for so much of it as should remain
unexpired, namely, the hire of a nurse for so long if the
ransom were tho suckling of tho infant, and the value of
the food and clothing if it were the infant’s mointenanco.
If a husband should ente\' into a khoold with his wife If the ran-
• « Boni is not
132
DIVOECK.
rqualtotho for a cousiclcratiou sufficiently tlescribed, and which when
delivered does not come np to tiro description, ho may
returned, rctnim 'what has been so delivered, and demand its exchange
for something coiTCsponding to the description. So also,
if the thing delivered be blemished, he may return it and
claim an exact similar unblemished, or its value ; or if ho
please he may retain the thing and require a compensation
for the blemish. So also, the same course is open to him
if the consideration were a slave who proves to be of a
country, or a piece of cloth that is found to be of a place,
different to that described. Not so, however, if the con-
sideration was a piece of silk and it proves to be cotton ;
for, though in that case the khoold is valid, and the
husband is entitled to the value of the silk, he cannot
insist on retaining the cotton, by reason of the difference
of kind between the two things.
KMd not If a wife should deliver a thousand to her husband,
Ht trSie" “ Nepudiute mo for it when you please,” the
husband’s payment would not be valid, and if ho should repudiate
option, repudiation tvould be revocable, and the woman
entitled to the money.
May he If a Uhoold is made with two women for one ransom,
fiTOwomcn MmU is valid and the ransom payable by them equally,
lor one If two should say, “ Kepudiate us for a thousand,” and he
ransom, only one of them, he is entitled to half the
* sum ; but if he should subsequently repudiate the other
the repudiation would be revocable, and he would have no
title to the remainder, on account of his delay in respoitding
to what required an immediate answer.*
Valid If a man should enter into a khoold with his wife for
the ransom ® article, w’hich proves to be the property of another,
be spec!- it has been said that the khoold is void ; but it wore better
the p^ to say that it is valid, and the man entitled to. the value
petty of of tile article specified, or a similar to it if it belong to the
another, similars.
Ransom The payment of ransom by a female slave is v^id. If
^ a generally by her master the amount is limited
* See ante, p. 130 .
KHOOLA.
133
to the proper dower, and for apy excess beyond it she female
herself is liable, and may he sued for it if emancipated and
able to pay, while she is liable for the original even in the
absence of any permission by her master. And if she appa-
should give a specific thing with his permission, both the
khoold and the delivery would be valid; otherwise, thohermas-
khoold only would be valid, and the slave herself liable
for the value or a similar ‘of the article, to bo sued for
after emancipation. Payment of ransom by a repudiated
mookatuhah is also valid, and her master has no right to
object.
With regard to tho conditions of khoold, those which m. Con-
are required on the part of the khali or man granting it
are four in number — viz. puberty, sanity, freedom ofKcquircd
choice, and intention ; so that no khoold, is valid if made j“ ‘l‘“
by a boy under puberty, or by an insane person, or one
acting under compulsion, or in a state of intoxication, or
in a paroxysm of anger so great as to take away all real
intention. If khoold is to bo considered in the light of a
tuldk, or repudiation, it is void when entered into by a
guardian for his ward ; but if khoold is not' a tuldk, it is
valid when given by a guardian for something in exchange.
Tho conditions required in a mookhtullah, or woman Rcqnirwl
receiving a khoold, are that she bo tahir, or pure for a'“fbcwiie.
toohr or period of purity in which no connubial intercourse
has taken place; that is, when she is a woman whose .
marriage has been consummated, is not past child-bearing,
and whose husband is present with her. It is also requi-
site that there be some aversion on tho part of tho woman
to her husband. But though a woman should say to her
husband, “ I will most certainly bring in upon you some
one whom you won’t like,” that would not render a khoold
imperative, though it would be proper and expedient in
such circumstances. Khoold of a pregnant woman is
valid, though there should be some appearance of a san-
guinary discharge, as repudiation would be valid in such
oircumstances, though it might bo said that the courses
are upon her. So also it is valid in tho case of a woman
vrhose marriage has not been consummated, though she
134 DIVOECE.
were actually subject to them at the time ; and a woman
who is past child-bearing may bo tKo subject of a klioolA,
though connubial intercourse should have taken place in
the toohr in which it is effected.
Two wit- It ig farther required, to the validity of the contract,
necessary, that it should be entered into before two witnesses who are
present at the same time ; for if they are separate it is not
valid. It is also necessary that it be free from conditions.
Ktmla by KlioolA may be lawfully entered into by a man who is
bked'^r- inhibition, whether it bo for profusion or insolvency ;
SOD, zim- or by a zimmec, or infidel subject, or by a hurbee or alien
r«r*buvfuL enemy. And if in the two last cases the consideration is
wine or a hog, the contract is valid notwithstanding ; but
if both or cither of the parties should be converted to the
faith Wore delivery of the exchange, the woman would be
. liable for its value.
Xhoola The conditions that nullify a khoold are those which
"onditTonf contract itself does not require. For if the husband
inconsis- should saj, “ If you revoke, I revoke,” such a condition
tciiti with ^ •
the con- W’ould not nullify the contract, for it is one which it
tract. requires.’ So also if the wife should expressly stipulate
for a right to reclaim the consideration, the khoold would
still be valid. But if he should say, “ I have given you a
khoold if you will,” the khoold would not be valid, though
she should say, “I have willed it;” for this is not a
• condition which the contract requires. So also if ho
should say, “ If thou wilt bo responsible to mo for a
thousand,” or, “ If thou wilt give me,” or words to 4ho
like effect ; or if he should say, “ when,” or “ whenever,”
or “ at what time,” the khoold would not be valid.
IV. Laws. With regard to the laws of khoold, they may be gathered
from the following cases : —
Not lawful First. If a man should compel his wife into an agree-
«! for 0 ransom, he would do what is unlawful ; and if
polled to he should thereupon repudiate her, the repudiation would
CTter into without any obligation on her part to deliver w^t
she had ogreed to give. The repudiation, however, would
be revocable.
«
* See next page.
ehoolA.
135
Second. If a husband should, give a khoold to his wife Nor when
while their dispositions or tempers are still in harmony,
the khoold would not he valid, and he would not become wife “roon
the proprietor of the ransom. And if he should repudiate
her for an exchange in like circumstances, he would not®*®'^-
become the proprietor of the exchange, but the repudiation
would be valid, though with liberty to him to revoke.
Third. If a woman has been guilty of any shameful or a
profligate act, her husband may lawfully annoy her so as profligate
to induce her to ransom herself. It has been said, how- may be
ever, that this has been abrogated, and is no longer *®®®®^
permitted. herself.
Fourth. When a khoold has been established, the hus- KhoolA
band has no power of revocation. The wife, however, may aWe'nn^
reclaim the ransom at any time during the subsistence of
the Mut : and if she should do so, he may then revoke cd by the
the khoold if he please. wife.
Fifth. If a man should enter into a khoold, and stipu-
lato for a power to revoke it, the khoold would not be puiatiou to
valid. So also repudiation for an exchange would be "vokc.
invalid with a like s'tipulation.
Sixth. A mookhtullah or woman who has received a Woman
khoold is not affected by a repudiation pronounced subsc- ^ived a
quently to it, because the latter is, in its nature, revocable.
True, that if she reclaim tlie ransom, her husband may SSgre.
lawfully revoke the khoold, and then repudiate her. pu^inted.
Seventh. When a woman’s father says to her husband, Agreo-
“ Ilepudiate her and thou art free from her dower,” and he woman^s*
does repudiate her, the repudiation is valid rovocably, andfethwfe*''*
she is neither obliged to discharge her husband from the Bonnot
payment of the dower, nor is her father responsible.
Eighth. When a woman has appointed an agent
khoold generally, the ransom must not exceed her proper moat not
dower to be paid in the coin of the place. And Iq like the
manner, when the husband appoints an agent for khoold in
general terms, and the woman’s agent gives more than the
proper dower, the ransom is void, and the repudiation
takes effect revocably, without any responsibility on the
part of tho agent. And if the husband’s agent should gi'ant
136
DIVORCE.
tlie kkoold for less than t]ie proper dower, the khoold would
be void. So also if he should repudiate her for such a
ransom, the repudiation would not take effect, as he acted
contrary to his instructions.
Connected with the laws of khoold, are the following
cases regarding disputes : —
In (lis> First. When the parties are agreed as to the quantity
** ransom, but differ as to its kind, the word of the
how the woman is to be preferred.
Second. When they agree that the quantity was men-
legulatcd. tioned, and that nothing was said as to the kind, but differ
as to what was intended, the khoold, is void, according to
some of our doctors, while others maintain that the burden
of proof is on the husband ; and this opinion is the more
approved.
Third. If the husband should say, “I granted the
khoold for a thousand on your responsibility,” and the
wife should say, “ Nay, but on the responsibility of Zeid,"
the burden of proof is on him, and the oath is on her ;
and if she should take it, sho is released from the ransom,
though Zeid does not thereby become liable. So, also, if
she should say, " Such an one made the agreement with
you, and he is liable for the ransom,” the result would be
the same. But if she should say, “ I made the agreement
myself, and such an one was my surety,” she is liable for
, the thousand so long as there is no proof, and nothing is
established against the tlurd party merely on the ground
of her allegation.
Section Second.
O/Moobardt.
How Moohardt is effected when the husband has said,
effected. <« Bareetoki via kuza fa anti talikoon ” ( “ I have liberated •
thee for so much, and thou art repudiated”). It is founded
mmtiai on the mutual aversion of the husband and wife ; and it is
aveision. ^ (.^Q^ition that the moohardt, or liberation, be followed by
the word trddk, in so much that, if the' husband should
stop at the word moohardt, no separation of the parties
MOOBABAT.
137
would take effect. And thousj^li, instead of Bareetoki^
other words, such as^ftmikhtoki, abuntoki, were employed,
they would be equally effective if followed by the word
tuldkf since it is that word alone which is required for the
separation, and none other. Even though the husband
should merely say, “ Thou art repudiated for so much,” it
would be valid and a moobardt, which is only another
expression for repudiation for an exchange, with mutual
repulsion between the spouses ; in each of whom the same
conditions are required as in the case of khoold,
Eepudiation for an exchange is absolute, so that the
husband has no power to revoke it, unless, indeed, the
wife should reclaim the ransom, which she may do at any
time during the subsistence of the uldut; and if she
should avail herself of the right, he may also revoke the
repudiation.
Moobardt is like khoold^ except that the former is
founded on the mutual aversion of the husband and wife,
while the latter is founded on the aversion of the wife
alone, and that in moobardt no more can be taken in
exchange for it than what she had actually received from
him, any excess being unlawful, while in khoold it^is quite
lawful. Further, we are all agreed that in moobardt the
word tuldk is necessary to effect a separation between the
parties, while with regard to its being required in khoold^
there is a difference of opinion among us.
Repudia-
tion for an
cxchant^e
irrevocable
unless the
exchange
is re-
claimed.
Distinc-
tions be-
tween moo-
bardt and
khoold^
188
DITOBOE.
CHAPTER IV.
OF ZIHAB.
Section Fiest.
Its Form, Conditions, and Efecls.
1, Form. In respect of Form, it is as if one should say to his wife,
“ Thou art on me like the hack of my mother ; ” so also,
if he should say, ‘‘ This pcmon,” or make use of any other
word indicative of a particular individual, “ is on me like
the back of my mother,” the zihar would in like manner
be constituted. The particular word of connection is of no
importance ; so that, if he should say, “ Thou art to me
or with me,” it would make no difference. If, again, ho
should liken her to the back of any other woman related
to him within the prohibited degrees by consanguinity or
fosterage, there are two traditions on the subject, and,
‘ according to the most notorious or generally received of
these, zihar would be effected. But if he should liken her
to the hand of his mother, or her hair or belly, it has bemi
said that there would be no zihar, though there is a weak
tradition in favour of its taking effect in such a case, while,
if the likening were to any other than his mother in any
part of the person but the back, there is no doubt that
there would be no zihar. And if he should liken his wife
to a woman prohibited to him only by affinity, even thongh
the prohibition were perpetual, as in the case of a wife’s
mother, or the daughter of an enjoyed wife, or the wife of
a father or son, zihar would by no means be induced. So,
also, his words would be alik$ ineffectual if the likening
were to the wife’s sister, or hen aunt, whether jmtemal o{
ZIHAB.
189
maternal, or if lie should say/ “ Like the back of my
brother,” or “father,” or “paternal uncle,” or if she
should say, “ Thou art on me like the back of my father,”
or “ my mother.”
In respect of conditions, it is necessary with regard to n. Condi-
tho ei/tar itself that two just persons should bo present
when it is pronounced, and hear the words of the moozdhir,
or husband, pronouncing them ; and also that the zihar
should take effect immediately. So that if the effect
should be suspended till the expiration of the month or
the entering upon Friday, there would be no zihar, accord-
ing to the best opinions. Where, again, zUmv is made
dependent on a condition, though the grant is also subject
to doubt, yet it is more agi'ecablo to traditional authority
to say that it would take effect.
With regard to the moozahir, it is required that he be Of the
adult and sane, have freedom of choice and intention. So
that the zihar of a child, an insane person, or one acting
under compulsion, or temporarily incapable of intention
through drunkenness, stupor, or a paroxysm of passion,
ai'o all equally invalid. And if one should use the formula
of zihar, intending repudiation, there would neither be
repudiation, for want of tho appropriate word tulcik, nor
zihar for want of intention. Zihar by an eunuch is valid,
if wo say that dalliance short of connubial intercourse is
prohibited by it ; so also it is valid when pronounced by •
an infidel or a slave.
• With regard to the moozahurah, or woman who is tho Of the
subject of the zihar, it is a condition that she have been
married by contract ; and, accordingly, zihar cannot take
effect with reference to one who is a stranger to the
inonznhir at the time, though he should suspend, or moke
it dependent on his marrying her. It is further required
that tho woman be tahir, or pure, for a toohr, or period of
purity during which there has been no connubial inter'
course, that is, provided her husband be present with her,
and she is of an age to be subject to the courses ; for if
any of tliese conditions are wanting the zihar is valid,
jjjliough they wore on her at tho timo. As to consumma»
140
niVORCK.
tion being a necessary condition there is some room for
doubt. There is a tradition, indeed, which supports its
necessity ; but later opinions favour the more general view,
being against any restriction in this respect. With regard
to a woman married by a mootu, or a temporary contract,
there are various opinions ; but, according to that which is
best supported by traditional authority, eilmr may take
effect on such a woman. And even in tlio case of a woman
enjoyed by virtue of a right of property, there is some
room for doubt; for there is a tradition in favour of its
efficacy in the case of a bondwoman, as well as one who
is free.
HI. Effects The effects of zihar have been arranged under several
cases, of which the follomng are the most important : —
When the First. Expiation is not due merely on pronouncing the
n^ssity gihar, but is rendered incumbent by a return to the wife,
tion vises, by which is meant an intention to resume connubial inter-
course. And the more correct view seems to be that
nothing is established by the zihar itself except a pro-
hibition of such intercourse until expiation is made. If
connubial intercourse should take place before expiation,
two expiations would be necessary, and if repeated, the
expiation must be repeated also.
Expiation Second. When a husband has repudiated his wife, and
by*rept^*^ then recalled her, that docs not render her lawful to him
diationond without expiation. But if she should pass out of her iddui
recall ; ijyithout revocation, and he wore then to marry her again,
no expiation would bo due. So, also, if the divorce had
been absolute, and he should marry her again in the iddut,
and have connubial intercourse with her, no expiation
would be due. Neither would it be incumbent if both or
either of the parties should die, or any of them apostatize
from the Mussulman faith.
botobviat- Third. If a man should zihar his slave wife, and then
purchase her, the marriage being cancelled by the purchase,
slave wife he might have sexual intercourse with her by virtue of his
^j^pnr- yigjjj. property, without any necessity for expiation. So,
also, if a third party should purchase her after the zihar,
and cancel the marriage, whicji ho is at liberty to do, the
ZIQAB.
141
effect of tlio zihar would bo ^extinguished, aud if her
husband should marry her by a mere contract ho would
not bo liable to any expiation.
Fourth. If a man should ziliar four wives by one Distinct
expression, a distinct expiation is duo for each of them ; j„e*^*™*
and if ho should zihar one several times ho is liable for a four wives
distinct expiation for each time, whether the zihara were
consecutive or separated by some intervals of time, though gethcr.
some of our doctors distinguish between the cases ; and if
ho have matrimonial intercourse before making expiation,
he is liable for a distinct expiation on each repetition of
the act.
Fifth. When the zihar is in general terms conjugal When_fto
intercourse is forbidden until expiation is made ; but when condi-
it is suspended, or made dependent on a condition, such
. .. .. 1 ..1 .t 0.1 1... pmtionnot
intercourse is lawful until the occuitouco of the condition, doe till the
and consequently no expiation is due for any previous
intercourse. If the intercourse itself has been made the
condition, the zihar is not established till it has taken
place, nor any expiation duo till a subsequent return to
the wife. Some, however, have maintained that it becomes
duo on the first occurrence of the intercourse ; but this
opinion has not by any means mot with general reception.
Sixth. Connubial intercourse is prohibited to the moo- When cx-
znkir until ho has made expiation, whether the expiation
bo by emancipation, fasting, or feeding the poor; and ifmcnccd.it
he should break the prohibition during the fast ho must renewed if
begin it anew,— though some few have erroneously said*^®.?^^'*
that this is not necessary if the intercourse were during broken
the night. But whether expiation is duo for anything
short of connubial intercourse, such as kissing or touching, tion.
is a question on which there is a difference of opinion ; and
the affirmative, which is maintained by some, is attended
with a good deal of difficulty.
Seventh. When the moozahir is unable to make expia- If the woo-
tion, or offer any other substitute for it than asking pardon
of God, prohibition continues, according to some, until expiate ho
expiation is made, but others, with more probability, ^Jjon*o£
maintain that to ask pardon is enough. God.
149
PIVOBCE.
Conneto Eighth. If tho moozahurah or woman who is tho
subject of the zihar choobes to have patience no other
judge has a right to object. But if she brings the matter before
jodg®> til® husband must be put to his choice, either
“•de to to make expiation and return to his wife; or to repudiate
Wife. ^ * ber, and three months are to be allowed to him to make
up his mind. If the time is allowed to expire without
making his choice, ho is then to be straitened in respect
of meat and drink, till ho comes to a determination as to
one or other of the courses ; but ho is not to bo compelled
by means of the straitening to repudiate his wife, nor is
the judge empowered to make the repudiation in his stead.
Section Second.
Expiation.
Is of sere- Expiations are of several kinds, some of which are
ral kinds, obligatory and some voluntary. In this placo it is only
Thatsp* necessary to notice the expiation of Zihar, which belongs
to the former class, and requires the emancipation of a
slave, or, in case of inability to emancipate, fasting for
two successive months, and in the case of inability to fast
for that time, the feeding of sixty poor persons.
By The obligation to emancipate is special to those who
emmeipa- have it in their power to do so by actually possessing a
slave; * slave, or by having tho money and opportunity to buy
‘ one. In the slave are required the three following
vbomnst qualities. — ^First, he must have eeman or the true faith,
tea Moot- jjjjg jg univei-sally required in the expiation for intention^
homicide, and, according to tho best or most approved
opinion, is also a condition in the other cases of obligatory
expiation. But hero nothing more is to bo understood
than ItUm or a profession of the Mussulman fiiith ; and
it makes no difference whether the slave be male or female,
young or full grown. An infant may come under the
category of I»Um, and is sufficient for the purpose of
expiation in zihar, if both or oither of his parents be
of the Mussulman faith at the time of its birth. But one
in tho womb is not sufficient, though both its parents
ZIUAH.
143
should he Mooslim, and itself is such in the eye of tho
law. When a slave who is duihb attains to puberty, and
professes the faith by signs, he is accounted a Mooslim,
and is sufficient for tho purpose of expiation, though both
his parents should be infidels. By the quality of Isldm
in the matter of expiation is not required such a profession
of tho faith as entitles one to the full enjoyment of its
blessings. It is quite sufficient if tho slave be firm and
established in the two testimonies, that is, tho Unity of
God and the Mission of tho Prophet ; and it is not a
condition that ho bo free from everything besides. A
youth under puberty, the child of infidel parents, cannot
bo accounted a Mooslim, whether they be with him, or tho
youth professing himself to be a Mooslim is separated
from them. Even a moorahik, or boy closely approaching
to puberty, who professes the faith, is not to be so accounted;
though on this point there is room for doubt and hesita-
tion, as also whether he should bo separated from his
infidel parents. This question, however, though it is
admitted that ho is still to be accounted an infidel, has
been answered by some of our doctors in the affirmative,
as a precaution to guard his good intentions from being
marecd by the influence of his parents. The second from
quality required in tho slave to be emancipated is freedom defects ;
from defects. So that one who is blind, leprous, or unable
to walk, is not sufficient. Other infirmities, however, do
not disqualify tho slave, such as dumbness, deafness, or *
the loss of one leg or one arm ; but one who has lost both
his legs is not sufficient because unable to walk. The and the
third requisite is that tho slave be the entire property of®
the emancipator. So that a moodubhir is not sufficient the eman-
so long as the tudbeer is undissolved, nor a mookahib who
has paid any part of his ransom ; but an abik or absconded
slave is sufficient so long as there is no positive intelligence
of his death. So also a vwostuwhidah, or slave who has
home a child to her master, is sufficient, for slavery is still
established in her.
The emancipation is subject to some conditions. First,
there must be intention, that is, an intention to expiate ; onumcipa-
. tion.
144
DIVOECE.
for emancipation is an act of piety wliicli is sascoptiblo of
different phases, and must be pointed to one in particolar
by intention. There must also bo in the intention a
koorhut, or a desire of drawing near to God. Henco
expiation by an infidel is invalid, whether he be a subject,
an alien, or an apostate. Second, the emancipation must
be entirely gratuitous ; for if the master should say to his
slave “ Thou art free and liable for so much,” it would not
suffice for expiation, since it is evident that he intended
to get something in exchange. And if a third party should
say to the master, “ Emancipate thy slave as an expiation,
and thou hast so much against me,” and he should
emancipate accordingly, it would not suffice for expiation.
Even though the master should restore the exchange after
he had taken possession of it, still thcro would be no
expiation ; for the emancipation being insufficient for that
purpose at the time it took place, cannot be rendered
sufficient by any subsequent act. Thirdly, there must be
V no cause for the emancipation in an unlawful act of tho
emancipator. Thus, if ho should have put out tho slave’s
eyes, or cut off both his legs, and should emancipate him,
intending expiation for zikar, the emancipation would take
effect, but not suffice for that purpose.
2. Fasting In obligatory expiation fasting is required when there
of inability to emancipate ; and such inability is established
inability to cither by tho non-possession of a slave and the absence of
means of purchasing, or by the impossibility of finding
a suitable slave, though there may be the means of
q)urchasing him. Though the person should be actually
possessed of a slave, yet if he is required for service, or if
his price be necessary for the person’s food or clothing, ho
is not obliged to emancipate. Nor is he under any
obligation to sell bis house or his clothes for the purpose
of buying a slave to emancipate, though any excess above
what is necessary' ought to be sold. When inability to
emancipate is clearly established, it is necessary, as the
expiation in zihar, to fast for two consecutive months, or
one month if the person bo a slave. If the fast is broken
in tho first month without a sufficient excuse, it must be
ZIHAU.
145
begun anew ; but should be fast, •tliougli only for one day
of the second month, the fast is held to bo comj)leted and
he is absolved. Some indeed consider him guilty of sin in
breaking the fast, but there is some doubt on the point,
and the better opinion seems to be that ho is not. It may
be observed that the only proper excuses applicable to a
case of this kind are sickness, fainting, and insanity.
In the event of inability to fast, expiation must be 3. Feeding
made by feeding the prescribed number of persons, that is,
by giving to each one moodd} Some say indeed that the is inability
proper quantity is two imodds^ and that it is only in case ^
of necessity that one moodd can bo deemed sufficient, but
the first opinion is not approved. Any abatement from
the full number of persona to be fed is not allowed, though
the quantity should bo the full allowance for the prescribed
number, — that is, when the prescribed number can bo
found, otherwise the expiation is satisfied by repeating the
allowance even to one person. The kind of food should bo
the medium of what is given to the expiator’s family ; or
what is the prevalent food of the place may be lawfully
given. The prescribed number may be fed separately or
all together. But it is not sufficient to feed children by
themselves, though they may be lawfully fed among the
general mass. If they should be fed separately two must
be counted as one grown person. It is proper to confine
the feeding to true believers,* and those who are reckoned
as such, their children for instance. According to the
^fah80ot the persons to whom the food is to be distributed, ,
are the same as those on whom the siikat of the Jitr is to
be expended ; and those >vho cannot be lawfully included
on that occasion are not lawful here. It w^ould seem that
profligate Mooslims may be included in the feeding ; but it
is by no means to be extended to infidels.
In connection with the subject of expiation generally, Miaccl-
the following cases are w'orthy of attention : — iasw.''*
First. Ability has reference to the time >vhen expiation AblUtyhas
— ; reference
* A weight estimated at 1 J mtl, Im, D., p. 78.
* Moomineetif but apparently not here restricted to SheeaUs,
PART IT. • • li
146
DIVORCE.
to the time is to be made, not to thf) time when it became incumbent.
So that, if a man who was at first able to emancipate,
should subsequently become incompetent to do so, and
should fast instead, he is no longer under an obligation to
emancipate.
A man Seco'iid. When a man is unable to emancipate, and has
begunOTo subsequently becomes possessed of suffi-
mode of dent means to enable him to emancipate a slave, ho is not
nofS)Hgcd oWiged to return to that mode of expiation. So, also, when
to revert to he is unable to fast, and has taken to feeding the poor
thong? instead, but subsequently finds himself able to endure the
able. first mode of expiation, he is not obliged to return to it.
When one has emancipated a slave before
tentionto intending to return to his wife, that, according to the
saffiden^ suffice to expiate the zihar, because the
expiation was made before it was due ; and the opinion is
quite correct.
Expiatory Fourth. The food of expiation is not to be given to an
infant, but to his guardian.
posed of. Fifth. Nor is expiation to be expended on one whom
the expiator is otherwise obliged to maintain, as his father,
wife, children, or slaves. But it may be expended on any
Value not
a substi-
tute.
others than these, though they should be near relatives.
Sixth. It is not sufficient to give value ih a case of
expiation, instead of the thing itself, which is obligatory.
Aitcrna- Seventh. Any one on whom it is incumbent to fast for
inabiiitjtoi^^o months, but is unable to do so, let him fast for
eighteen days. If unable for that, let him bestow in
’ charity to the extent of one moodd per day. If unable for
that, let him ask pardon of Almighty God, and nothing
more is required of him.
( 347 )
CHAPTER V.
OF EELA.
Ix form, Eclii is an oath by God, and cannot be contracted Fonn.
without ouo of the Divine names ; but it may bo effected
in any language when so intended. The words by which
it is constituted are either plain and express, being specially
appropriate to sexual intercourse, or capable of being so
intei'pretcd. For the former, there are no corresponding
terms in the English language. The latter are such as,
“ By God, I will have no connection with thee ; ” and, if
used designedly with a view to eela, they are sufficient to
constitute it ; but, unless so intended, they are not suffi-
cient, while the others are sufficient in themselves.
Whether eela can be made in dependence on a condition,
is a question on which there are two reports of the Sheikh's
opinion. According to the most notorious or generally
received of these, it cannot bo constituted either in depend-
ence on a condition or to take effect from a future time,
and, if attempted, the condition would bo surplusage. If
a man should swear by emancipation,” or “ by alms,” or
“ by prohibition,” that ho would not have connection with
his wife, there would bo no eela, even though intended.
Neither would it be affected by his saying, “ If I do so I
am liable for so much.” And if a man, having properly
made an eela with one wife, should say to another, “ I
have associated thee with her,” there would be no eela
mth the second, though it were intended, since eela cannot
be effected except by an expression involving some name
of God.
148
DIVORCK.
ConditioM With regard to the ujpolee, or person pronouncing the
the'w^^e* cehi, it is required that he be adujt and sane, and have
or has- freedom of choice and intention. But eeJa by a slave is
’ valid, whether his wife be free or a bondwoman. So, also,
that by a zinmee and an eunuch ; even a tnvjbooh, or one
who has lost the penis, is valid, though, with regard to the
latter, there is some room for doubt,
in the With regard to the maola, or woman who is the subject
“ of the eela, it is necessary that she bo married by contract,
and not merely by virtue of a right of property ; and also
that the marriage has been consummated. With regard
to a woman married by mootii, or a temporary contract,
there is some doubt ; but, according to the better opinion,
she is not a subject for eela. It makes no difference,
however, whether a woman be free or a slave; and in
cither case she is competent to bring the matter before a
judge, to have a time fixed, and after its expiration to
demand a return to conjugal intercourse. Eela may also
take effect with a zimmeeah, or infidel subject, as well as
with a mooslimah.
Laws of The laws of eela are comprehended under the following
cases : —
Must be First. Eela is not contracted unless the prohibition is
th^foiur aljsolute, perpetual, or for a time exceeding four months, ‘
months, or to continue until the occurrence of something which
certainly cannot, or in all probability will not, happen
before the expiration of that time, as if a man should say,
being in Irak at the time, “ Until 1 go to and return from
a town in Turkey." If the time is four months only,
or somewhat less, or is limited by an event which will
certainly, or probably, or possibly happen within that time,
eela will not be effected. And if he should say, “'Ey
God, 1 will not have connection with thee until I enter
this mansion,” there would be no eela, for he might be
freed from the necessity of expiation by having connection
in the entrance, which would evade the eela.
' Four months are sufficient, according to the other sect. P.,
1 ). 293 .
EEIi-V.
149
Second. The time for the woman to wait is four months, Woman
whether she be free or a slave, and whether her husband **
bo the one or the other. And this time is the husband’s months
right ; so that within it she cannot demand his return to
her. Nor when it has expired, is she divorced by the matter
mere expiration. Neither has the judge any power tOj’„jg”°
divorce her. But if she should bring tho matter before
him, tho husband must then make his choice either to
repudiate or to return to her. If he should repudiate her,
that would put an end to her right, though the repudiation
Avould be revocable, according to tho best opinions. So
also, if he should return to her, that would equally put an
end to her right. But if he refuse to do either of the
things required of him, he is to be imprisoned and
straitened until he cither repudiates or returns to her.
The judge, however, has no power to compel him to do
cither of these in preference to the other. If the eela
should be for a definite time, and he procrastinates after
the matter is brought before the judge till the time expires,
the effect of the ecla abates, and he is not liable for any
expiation, though ho should have connection with his wife.
If she should deem it her right to demand a return, it
would not thereby bo Extinguished, for it is constantly
renewed ; and it is only rights that are not thus susceptible
of renewal that can be extinguished by forgiveness.
•
Branches from the Preceding.
.First, If the husband should have conjugal intercourse Conjngal
within the time of expectation, he is liable to expiation "”0®
according to general agreement; but if the intercourse time in-
should not take place till after tho expiration of that time,
it is stated in the Mubsoot^ that there would be no necessity
for expiation ; but it is said in the Khilap that he would
still bo liable, and this opinion is the better founded.
Second. When a man has pronounced an eela with ^^^^.^^'^
respect to a wife who is a slave, and then purchases, ^
emancipates, and remarries her, the eela does not revive, being
- i a slave, is
® Both works arc by the SheiJik
150
DIYOBOE.
emanci-
pated and
re-mairied
by her
hnsband.
Caae of
fonr wives
included in
one eda.
Eda of a
wife levoo-
ably repu-
diated
valid.
Expiation
in cose of
eda.
And the result would be* the same if the conditions were
reversed, and the wife being free should purchase, emanci-
pate, and then remarry her husband.
Third. When a man has said to four wives, “ By God,
I will not have connection with you,” he does not become
a moolee on the instant, and may lawfully have intercourse
with three of them ; but then the prohibition will attach to
the fourth, with respect to whom the eela becomes esta-
blished. Consequently, she may bring the matter before
the judge, to have a time fixed for her. If one of the wives
should die before the husband has had connubial intercourse
with any of them, he is released from his vow, for a breach
of it cannot be established except by connection with the
whole four. The case would be different if ho should repu-
diate one or two or three of them ; for then the vows would
remain in full force as to the remaining wives or wife,
since connection with those whom he may have repudiated
is still within his power under a semblance of right. If,
however, he had said, “ I will not have connection with
one of you,” eela would be established as to all, and a time
must be fixed for all. True, that if he should have con-
nection with one of them, he would be released firom his
vow as to the remainder ; though if ho should repudiate
one or two or three of them, the eela would still be good
as to the rest.
Fourth. Wlien a man has pronounced an eela with
respect to a wife repudiated revocably, the eela is valid,
and the iddiit is to bo reckoned from the expiration pf’the
time. And the rule is the same if he should repudiate
his wife revocably, and then pronounce an eela with respect
to her, and subsequently recall her.’’
It is to be observed- that the expiation in a case of eela
is the same as for a yumeen or oath ; and in expiating a
yumeen it is optional, either to emancipate a slave, or to
feed the poor, or clothe them. If clot^g be preferred,
two garments should be given if the party bo able, or one
’ Some of the cases have been omitted, as not likely to be of any
practical utility. • •
EELA.
151
only if lie cannot give more, ^ome have said, however,
that in either case it is optional to give only one ; and this
seems to be the better opinion. If, again, feeding should
bo preferred, one moodd is the proper quantity of food for
each poor person, even though the party should be able to
give two moodds. If a man should beat his slave exces-
sively, it is proper to make expiation by emancipating him.^
* The authority for the last paragraph is taken from the chapter
on Zihar, pp. J341-2.
162
DIVORCE.
First
)>illar :
Onuses.
1st. Scan-
dal.
CHAPTER VI.
OF liAn.
Section Fibst.
Its Pillars.
These are four in number. The first pillar is its cause,
or rather causes, for there are two. The first cause is
scandal ; but Lidn is not induced by this cause, except
when a husband charges his moohsunnah, or chaste wife
whom he has enjoyed, with adultery, and alleges that he
has had ocular demonstration of the fact, but has no
other proof of it. If the woman charged be a stranger
to him, he is liable to the hudd or specific punishment
for scandal, and there is no lidn. So also, if he should
charge his wife without alleging that he was witness to
the fact, the result would be the same. But if he has
proof, there is neither hvdd nor lidn. So also, if the
accused woman he notorious for zina or adultery. It
follows, from ocular demonstration being required on the
part of the husband, that there can be no lidn for scandal
in the case of a blind man, though there may he for denial of
a child. If the accuser has proof but declines to produce
it in order to a lidn, it is a question whether lidn would he
valid. According to the Khilaf it would; but this is
denied in the Muhsoot, on the ground that the wont of
proof is made a condition in the sacred text;* and this
opinion is more agreeable to the general principles of law.
If the charge of adultery be referred to a time previous
' Those who charge their wives with adultery, and have no wit-
nesses but themselves.— See Inayah, vol. ii. p. 202.
LIAN.
153
to the marriage of the parties, tl^e husband is liable to the .
hudd for scandal ; and whether he can avoid it by lidn is
a question on which the authorities differ. The author
of the Khilaf, looking to the iact charged, insists that he
cannot ; while the same author in the Muhsoot, having a
view to the time of the charge, maintains that he can ; and
this opinion seems to be most in accordance with the prin-
ciples of law.
It is not lawful for a husband to accuse his wife on A wife
more suspicion, nor even with a strong probability of her b*c“aJ,J!iMd
guilt, founded on information given to him by a person on snspi-
in whom ho can confide, nor though it should be a matter even
of common fame that such an one has committed adultery «tn>ng pre-
With her, ^
When a husband accuses his wife during her iddut for May be
a revocable repudiation, he may have recourse to lidn. 5n*j^^the
But not so if the repudiation were absolute or irrevocable ; uldut for a
for in that case he would be liable to the hudd, ®Ten”p^^®’
though he referred the charge to a time when she was tion.
still his wife.
The second cause of lidn is the denial of a child. 2nd. De-
But for the operation of this cause it is necessary that
delivery should take place at six months or more from
the time of conjugal intercourse, and not beyond the
extreme period of gestation. It is further requisite that
the intercourse should have been under a permanent con-
tract. If the woman should give birth to a full-grown
child within six months from conjugal intercourse the
child is not affiliated to her husband, and may therefore
bo denied by him without lidn. But if they differ, after
consummation, as to the time of the pregnancy, recourse
must bo had to mutual liiin. And a child is not affiliated
to the husband unless access to his wife was possible, and
he was able for matrimonial intercourse. If, then, a boy
under nine years of age should go in to his wife, and she
should give birth to a child, it is not affiliated to him ;
otherwise, however, if the boy should have attained to ten
years or more, from the possibility of his being adult,
as puberty is sometiilies, though rarely, found at that early
154
DIVOBCE.
age. Yet if he should deny the child there can he no liAn,
as there is no law for it in such circumstances, and it
must be delayed until he has attained to puberty and
discretion. But if ho should die, whether before or after
attaining to both, without denying tho child, it must be
affiliated to him, and both wife and child are entitled to
participate in his inheritance. A child is not affiliated
to an eunuch who is mujboob, though this is liable to
doubt ; and if the person is only one of these, that is, an
eunuch or a mujboob, the child is affiliated to him, and
cannot be denied without Vuin.
Child may When a husband is present with his wife at the time
be denied (,f jjgf childbirth, and does not deny the child when con-
before gratulated on the events he is precluded from afterwards
Ud^ent • it the delay to do so exceeds what is customary
’ in such cases. It would be more proper, however, to say
that he is at liberty to deny it, so long as he has not
acknowledged the child to be his. And if he refrain from
denying a child of which his wife is pregnant till her
delivery, he may lawfully deny it after its birth, according
to both opinions ; because he may have refrained till then,
on account of some doubt whether there was a real
pregnancy or only the appearance of it. But a person who
but once has once acknowledged a child expressly or in words that
doubt of his meaning, cannot afterward deny it, as
M if, when con^atulated on its birth, he has answered in
SSIS / words indicative of satisfaction. For instance, if the terms
of congratulation were, ** God has blessed you in yQur
child,” and he should answer, " Amen,” or If it please
God.” But if he shoidd say by way of answer, *' God has
blessed thee,” or “God has done good to thee,” there
would be no acknowledgment.
■"‘I’ When a man has slandered his wife and denied her
its child, he is delivered from the huM or specific punishment
for the scandal if he can prove what he has laid to her
Kjected, charge ; but the child cannot be rejected except by U&n.
exMptby g jjjQQ gixould repudiate his wife absolute^, and
she should be delivered of a child, it is afifiliated to him
according to appearances, and cannot be denied otherwise
liAn.
165
than by lidn. If sbe should matry again and be delivered
of a child at less than six months from intercourse vrith
her second husband, and at nine months or less since
her separation from the first, tho child cannot bo denied by
the first otherwise than by lidn.
The second pillar of lidn is the Mooldin or imprecating Second
husband, of whom it is required that he be adult and sane,
With regard to lidn by an infidel there are two reports, or im-
and, according to the more generally received of these, it SSSSl
is valid. The same may bo said of a slave. And the lidn
of a dumb person is also valid when his moaning can bo
ascertained by approved signs, in tho same way as repudia-
tion and acknowledgment by him are valid. But lidn is in
no case valid without speech or approved signs. If a
person should deny a child begotten under a semblance of
right to intercourso with its mother, the paternity of the
child is negatived, and there is no room for lidn. And
when there is an absence of all or any of the conditions of
affiliation, it is an incumbent duty on a man to deny a
child and have recourse to lidn, that its nmuh or paternity
may not bo established in one who has no right to him.
But it is not lawful to deny a child on suspicion, or presump-
tion, or want of resemblance between it and its progenitor.
Tho third pillar is the Mooldinah or imprecating wife, xiiird
of whom it is required that she bo adult and sane, and free
from deafness or dumbness. It is also required that she or
was married by a permanent contract. With regard
consummation there are several reports. According to one
of these there is no lidn without it ; according to another
the lidn is lawful ; while a third restricts its legality to a
case of scandal, excluding denial of a child. Lidn is
established between a free man and a slave wife, though hero
also there are two other opinions, one of which forbids it,
while the other allows it only for denial of a child, to the
exclusion of slander. Lifln is valid with respect to a pregnant
woman, though the hudd cannot be inflicted till her delivery.
A female slave does not become njirash or wife * merely “
1 female
* Flrath means literally bed.
156
DIVORCE.
slave may
be denied
\^’ithoat
lidn.
Fonrth
)»lllaT; —
Form.
by virtue of the right of pnoperty ; whether she becomes so
by sexual intercourse with her master is a question on
which there are two reports. According to that which is
best supported by traditional authority, she does not
become a firash, and her child is not affiliated to her
master, without his acknowledgment. Even though he
should admit his intercourse with its mother, he may still
deny the child, and the case does not require luin.
The fourth pillar of luin is its form or the manner in
which it is conducted. It is not valid except in presence
of the judge, or some one ap2)ointed by him for the
purpose. Yet if the parties are content with a private
})erson, and take the luin before him, it is lawful. Its effect
is established on the mere order when pronounced, though
some say that it requires the subsequent consent of the
parties. The proper form of the luin is that the man
should four times call God to witness that he is among the
truth-speakers in respect of what ho has laid to her charge,
and that he should then add. May the curse of God be
upon him if ho be among the liars. The woman should
then call God to witness four times, that he is among the
liars in respect of what he has laid to her charge, and
should then add. May the wrath of God bo upon her if he
is among the truth-speakers. The words of testimony are
as just explained, and it is proper that the man should
stand when uttering them, and that the woman should
also stand when doing so. Some, however, insist that
they should both be standing together before the judge.
The man should begin the formula as just slated, and then
the woman. He should also designate her in such a
manner as to prevent her from being mistaken for any
other, as by mentioning her name and that of her father,
or specifying some of her distinguishing marks. The
parties should also make use of the Arabic language if able
to do so, and are only to be excused by inability; and the
judge, when unacquainted with that language, should take
the assistance of two interpreters, one being insufficient.
The man should begin with testifying, and conclude with
the word "curse;” while the woman should also begin
u.4ii.
167
with testifying but conclude witl^the word “ wrath.” And
if, instead of saying, I testify by God,” the parties should
say, “ I swear,” using the words kmim or huhf, both
signifying an oath, the formula would not be lawful.
Section Second.
Tmws of Lidn,
These are contained under several cases, of which the
following are the most important : —
First. A man by slandering his wife becomes liable Its effects,
to the hnchl, but his liability ceases on his taking the lidn,
and this is his right. The liability to hudd is then cast
upon the wife, and on her taking it four consequences
follow : — both the liabilities are at an end ; the child is
cut off from the man," but not from the woman ; she
ceases to bo a wife ; and becomes perpetually prohibited to
the man. If ho should give himself the lie, or retract in
the midst of the lidn, or refuse to take it, the liability to
hiuld is established against him, but none of the other
consequences aro established. If she should refuse, or
acknowledge the truth of the charge, she is to bo confined,
and he is relieved from the hiuhl, but her Jirash or wife-
hood docs not abate, nor is prohibition established. If
he should give himself the lie, or retract after the lidn,
the child’s paternj^ty is restored, and with it his right of
inheritance ; but neither the father, nor any one related
through him, can inherit to the child, while the mother,
and those related through her, retain their right of in-
heritance to him. Her wifehood, however, does not return,
nor is there any abatement of the prohibition. On the
question whether his liability to the hndd revives, there
are two reports, but, according to that which is most in
accordance with traditional authority, he is not liable to it.
If, again, she should make an acknowledgment subse-
quent to tile lidn, she would certainly not be liable to the
* That is, when the cause of lidn is denial of a child.
168
DIVOECE.
hudd unless the confession were repeated fonr times/ and
even with that there is some doubt of her liability.
After de- Second. When a woman complains that her husband
has slandered her in such a manner as to induce lidn, and
rocouTse ho denies the charge, but she adduces proof of it, he
oow lifive recourse to the lidn, for that would be
falsifying himself.
TbcAuiif Third. When a man has slandered his wife with
avoidrf*b 7 another man in such a manner as to imply that they have
proof of committed adultery together, he becomes liable to two
inflictions of the hudd, but can save himself from that duo
to his wife by taking the lidn, and from both if he can
produce proof of tho charge.
or by wife’s Fourth. Wlicn a man has slandered his wife, and she
confesses before lidn, then, according to tho Sheikh, she is
liable to the hudd if tho confession is repeated four times,
but her husband is absolved though she should confess
tho^h tho only once. If, however, the paternity of a child is
of s™^ involved in the case, that cannot bo rejected except by
reacted** husband may have recourse to of himself ;
vrithoat it. because the concurrence of the husband and wife as to the
fact of adultery does not ignore the paternity of a child.
Doubt as established by the firash, or wifehood, of tho
tofonrwit- woman. Thfire is also some doubt as to the lidn.
being re- Fifth. When a man has slandered his wife, and sho has
qnired to acknowledged the fact, and he adduces two witnesses to
knoiriedg- acknowledgment, they cannot be received, according to
ment of the Sheikh, and he is liable to the hudd.‘ There is, how-
thragh over, some difficulty in the case, because the testimony
toSnSt acknowledgment, not to the fact of
itecif. adultery.
£ ^i»»o t Sixth. When a man has brought a scandal against
after wi^s ^ before tho lidn, the Udn drops and
death. the husband is entitled to inherit from his wife, but is
liable to the hudd at the instance of her heirs. Ha may
* This is required by the Imameea code, as well aslby the Han-
ifeea. — Shuraya, p. 618.
* Fonr witnesses are required to establish a charge of zim.
liAn.
159
tlicn^ however, to save himself from the Uxuldy have recourse
to the lidn. According to a report of Ahu Buseer, if one
of her people should arise and put the husband to the lidn,
he would have no right in her inheritance, otherwise his
right remains ; and this opinion has some support from
the Khilaf; but the principle of law in the case is that the
right to inheritance is established by death, and cannot bo
taken away by a subsequent lidn.
Seventh. If there has been a failure in any of the words
required in the formula of lidn, it is not valid, and any
order which the judge may have passed upon it is in-
operative.
Eighth. The separation induced by lidn is a cancella-
tion of the marriage, not a repudiation.
Lidn not
valid if
there is a
failure of
any of its
conditions.
Separation
by lidn is a
cancella-
tion of
marriage.
160
DIVOBCE.
CHAPTER Vn.
OF IDDUT.
Section First.
Women on whom it is not Incumbent.
woman is obliged to keep iddut whose marriage has not
riagehes been consummated, whether she was repudiated by her
constw- husband or separated from him by a cancellation of the
mated contract, except only when the cancellation is by his
death. A widow is in all cases bound to observe an iddut,
except a whether her marriage was consummated or not.
Oonanm- Consummation is established by the insertion of the
ination plans penis, without emission, and even though the
descnbed. jjg jq eunuch. Some have said that an iddut
is also incumbent when he is a mvjhoob, from the possi-
bility of pregnancy by friction ; but this is liable to doubt,
as iddut is dependent on coition. If, however, pregnancy
should actually ensue, an iddut must necessarily be observed
till delivery. .
In no case is iddut required in consequence of the
mere retirement of the husband and wife together without
coition, according to the most common or generally re-
i^nire an ceived'opinion. When retirement has taken place, and a
dispute subsequently arises between the parties as to the
fact of coition, the word of the husband with his oath is
to be preferred.
Mere re-
tirement
without
coition
cloefl not
requir
iddut.
IDDUT.
161
Section Second.'
TFomen who reckon hy Kooras.
Those arc women who are subject to the courses, and Women
tlio iddnt proscribed for them, when free, and whether thccTurses
their husbands be free or not, is three kooras, by which is
to be understood, according to the most common or gene- for three
rally received of two traditions, three toohrs, or periods of
purity. If a man should repudiate his wife, and she Avere
then to menstruate a single Inhzah, or instant, after, this
luhzah would bo reckoned as one koora, and the two
remaining kooras Avould be completed on the appearance
of the third discharge ; so that iddiit would expire on
the instant. This is the case when the courses are regular,
returning after stated intervals. When, on the other hand,
there is any'irregularity, thoAvoman should Avait for caution
till the expiration of the shortest time when they usually
recur, wdiich, in reckoning for the iddtit, is taken to bo
tAvonty-six days and tAvo luhzahs. Not that the last of the
liihzahs is included in the iddiit, but it is added for greater
caution, as evidence of its completion. If a man should
repudiate his Avife Avhile the courses are actually on her,
the repudiation AA’ould haA^e no effect, as already mentioned ;
but if the repudiation Avere given in a toohr, or period of
purity, it would bo quite valid, though the Avoman should
menstruate Avhen the man had done speaking, Avithout an
appreciable instant of time intervening, because it took
effect in the toohr. Still, hoAvever, that toohr could not
be reckoned in the Iddiit, because it did not follow the
repudiation, and three new kooras Avould be required after
the menstruation. If there should bo any difference on
this point, the wife insisting that a part of the toohr
remained after the repudiation, while the husband denies
that such was the case, the word of the Avoman is to be
preferred, because she had the best opportunity of knefwing
the fact.
' This and the following sections, to the fifth, relate to free Avomcii
Avho have been repudiated, or Avhose marriage has been cancelled
otherwise than by the death of their husbands.
• PART II. • . M
162
DIVOBCE.
ii^ECiioN Third’.
Women who reckon by Months.
Adnlt A woman who is not subject to the courses, though
to* arrived at the proper age, must observe an iddut
the conrscs of three months after repudiation or other cancellation of
iddut for ^ her marriage, provided that it has been consummated and
she is free. With regard to a ydissah, or woman who is
Women P®®* child-bearing, and one who has not yet arrived at
past child- puberty, there are two traditions. According to one of
^tobl^d obliged to obseiwe an iddiit of three
to keep^ months ; but, according to the other and more generally
received tradition, no iddut of any kind is obligatory on
^med them. The age when women are supposed to be
to be so. past child-bearing is fifty years, though it is said that,
among the Koreish and Nabateans, the age is sixty years.
If, in a particular case, the monthly discharge should have
ceased while women of the same age are generally subject
to it, the iddut is three months by general agreement,
te ® *^® woman should have regard
served in both to courses and to months ; so that, if three toohrs
a doubtful gliould first be completed, or if three months should first
expire, the iddut would be at an end in either case. ■ But
if she should perceive the discharge in the third month,
and the second and third appearance should be delayed,
she must have patience for nine months, for the possibility
of her being pregnant, and then keep an uldut of three
The long- months. This of all idduts is the longest. A woman
iildut. whose courses occur only once in four or five months
should keep iddtit by months.
Months to When a woman has been repudiated at the beginning of
oned V ^^® appearance of the new moon, the three
the moon, months of the iddut are to be reckoned by hiUals. Where,
again, she was repudiated in the middle of the month, the
iddut is to be measured by two hiUals, and so much of
the third month as to make up for what was wanting
of the fiirst. Some, however, are of opinion tluit here also
the three months must be reckoned by three hUUUs, and
lUDUT.
163
tho opinion seoma to bo more in accordance with the
general principles of the law.
If, after the iddut of a woman has expired, and she has A mar-
entered into a second marriage, any suspicion should arise
of her having l)een pregnant, the iddut is not invalidated after the
thereby. Nor is it invalidated even though no
marriage should have been contracted. But if there should is not in-
be any suspicion of pregnancy before the expiration of the >
uhlnt, tho woman ought to refrain from entering into
another marriage. And it would bo proper to do so when
there is any suspicion of the kind, even though the iddvt
should have expired. In this case, however, it is right to
obseiTO that the marriage would bo lawful so long as there unless the
is no certainty of tho woman’s being pregnant. But in all
the cases, if she should subsequently prove to have been scqncntly
pregnant, a second marriage entered into in such circum-
stances would be void, by reason of the iddut being still pregnant
subsisting at the time of the contract. of ronti^t*
Section Fouuth.
Of Pregnant Women,
A pregnant woman, when repudiated, must keep uldut a preg-
till delivered of her child. If a woman, after being repu-
diated, should allege that she is with child, her husband repudiated
ought to wait patiently till the extreme term of gestation,
which is nine months ; but after that her claim is no delivery,
longer to bo regarded. According to one tradition, he
should wait for a year ; but this tradition has not been
generally received. If a woman is pregnant of twins, she
becomes absolutely separated or divorced from her husband
on the birth of the first of them ; though she cannot law-
fully enter into a second mamage until delivered of the
last also. It seems preferable, however, as more in accord-
ance with the principles of the law, to say that she is not
completely divorced from her husband until delivered
of both. But if her
If a man should repudiate a pregnant wife revocably,
and then die while her iddut is still unexpired, she must must enter
164
DIVORCE.
sem bianco
of right.
Disputes
«s to time
on a new enter ancAv into an iddat, on account of his death. But if
h^dcath repudiate her irrevocably, she is only required to com-
if therepu- plete the iddut already commenced for the repudiation.
wM'rovoc- ^Vhen a woman has become pregnant by zim, and is
able. then- repudiated by her husband, it is \h.Q'iddut of months
Case of a obsoiwe, and not that of delivery. But
woman if she was enjoyed under a semblance of right, and her
afiBliated to the man with whom the inter-
tmdera courso took place, by reason of her husband being at a
distance from her at the time, and she is then repudiated
by her husband, she should keep iddut till deliveiy, on
account of the father of the child, and after the delivery
observe a new iddut, on account of the repudiator.
When a husband and wife arc agreed as to the time of
of deliveiy a repudiation, but differ as to the time of delivery, the
word of the woman is to be preferred, because the difference
is with regard to her o^vn act. If, again, they are agreed
as to the time of delivery, but differ as to that of the 'repu-
diation, the word of tho man is to bo preferred, because
here the difference is witli regard to his act. There is,
however, some difficulty in both tho cases, because tho
original facts are, the non-existence of the repudiation, and
tho non-existence of the' delivery ; and according to tho
general rules of procedure, the word of tho person who
denies these facts should be preferred. *
If a woman should declare that her ixldut has expired,
and be subsequently delivered of a child at six months or
more from the date of the repudiation, some are of opinion
that tho child is not to be affiliated to tho repudiator ; but
the better opinion seems to be that it ought to be ascribed
to him, so long as the time does not exceed tho extreme
term of gestation.
or repu-
diation:
continued.
Section Fifth.
Iddut for Death*
For a wo- A free woman married by a valid contract should ke^
isnotprog- iddut for tho death of her husband during four months and
‘ This section relates to free women only.
IDDUT.
165
ton days when she is not pregnant, whatever be her ago, nant the
whether she is a child or full grown, and whether herf^“*'*
hnsband had arrived at maturity or not ; and she becomes months
absolutely separated from her husband, or all connection
with him entirely cut off at sunset of the tenth day, for that
is the end of the day. If she is pregnant the iddut is the For one
largest of the two periods, that is, it is prolonged
delivery if that should not occur till after the expiration the same
of four months and ten days from her husband’s death,
whereas if she is delivered before the expiration of that
time she is to wait for its completion.
Hed{id, or momming, is incumbent on a widow ; by which Ued&d in-
is to bo understood abstinence from everything in dress
and ointments intended to adorn or beautify the person, what it is.
There is no sort of objection to black or blue garments, for
in these there is an entire absence of anything like orna-
ment. In those respects there is no difference between the
young and the full grown, tho mooslhmh and the zimmecah.
But there is some doubt with regard to a slave, on whom
it woiild seem that hediid is not incumbent. Neither is it Notincum-
bent on a
incumbent on a woman who has been repudiated by her woman
husband, whether tho repudiation Avero revocable or
irrevocable. dialed.
A woman who has been enjoyed under a semblable /rfrfatof a
contract, and whoso husband has died, should observe tho
■tddid prescribed in the case of repudiation, not that “
appointed for a husband’s death, whether she be pregnant contract,
or not ; the observance being due to tho carnal intercourse,
not to tho contract, for in reality she is not a wife.
When a person is missing but something is known as Missing
to where ho is, or his wife is maintained by his guardian or wh^^not
some one acting on his, behalf, she has no option but must
wait for his return. Where again there is no intelligence wife is
regarding him and no person who maintains her, though
she may also in such circumstances remain content with nance, she
her condition, and no one has a right to interfere, yet if she
please she may bring the matter before the judge. In the jndgo ;
event of her taking that course tho judge should postpone
the consideration of the subject for four years, and make
1C6
DIVORCE.
who, if
nothing is
heard of
the hus-
band for
four years,
may direct
her to keep
iddut as for
his death;
after
which she
may marry
again.
And she is
not obliged
to keep a
second
iddut,
though the
first hus-
band were
really
dead.
Nor is he
obliged to
muiiitain
her if he
return
before
completion
of the
iddut
woman
may be the
subject of
another
repudia-
tion or a
zihar
during the
iddut
diligent inquiry in the meantime regarding the husband.
If some certain intelligence of him he then received, she
must still have patience, but it is incumbent on the ImAm
to maintain her out of the Beit-ool-Mal, or public treasury.
If, on the other hand, nothing can be heard of her husband,
the judge should direct her to keep iddut as for his death ;
and on its completion she may lawfully many again. If
after all this the missing husband should appear, and 'find
: that she had completed her iddut and married again, he is
I without any remedy against her. But if he should appear
while she is still in her iddut, he retains his right to her.
Where again the iddut has expired, but she has not availed
'herself of the privilege to many again, there are two
traditions on the question of his rights ; and by the most
generally received of these he is entirely without any remedy
against her.
I If she has availed herself of her right to marry again
after the expiration of her iddut, and it then proves that
the first husband is dead, the second contract is valid, and
» she is not under any obligation to keep a second iddut,
whether the death occurred before or during the cmTcncy
of the iddut, or after its expiration ; for the first contract
was extinguished in the eye of the law, and no efiect can
bo given to the death of tho husband, as none would bo
given to his life if he were still in ‘existence.
The missing husband is not liable for the maintenance
of his wife during her iddut, even though ho should come
back before its expiration. This seems to be a necessary
effect of the judge’s order of separation between the
I parties ; but there is some doubt or difference of opinion
on the point.
If a husband should repudiate or zihar his wife during
her iddut, maintaining her at the same time, the repudia*
I tion or zihar would be quite valid, for the coverture* still
remains. But though he should continue to maintain her
after the iddut has expired, a repudiation or zihar in such
circumstances would be entirely inept, because the cover*
ture has l>een cut off and is at an end.
’ Arab. Amut—Menee, protection modeiiiy. •
IT)I>ITT.
167
When a repudiated woman who has entered into a If she
second marriage is delivered of a child after the lapse of entcHnto
six months from its consummation, the child is to bo » second
affiliated to the second husband, though it were claimed
by the first. And even if he were to support his claim by ^
an allegation that ho hod privately intercourse with the be afBli-
child’s mother, still no regard should be paid to it. The
Sheikh, however, has said that the claimants should cast
lots for the child. But this opinion is far from being
generally received.
A husband has no right of inheritance to a repudiated No right of
wife if she should die after the expiration of her iddiit ; ’"''s'i*'"
nor has she any right to inherit from him if he should case of
die after its expiration. But there is some room for doubt
as to their respective rights if cither should die during the of the
currency of the iddut. It seems more agreeable to the
general principles of law to say that the survivor has in
that case a right to inherit.'*
Section Sixth.
The Iddut and Purification of Slavee.
The iddtit of a female slave on account of repudiation, iddut of a
after her marriage has been consummated, is two kooras;
by which is to be understood two toohrs or periods of tion is two
purity. According to some doctors it is two occurrencos
of the courses, but the first opinion is the more probable.
The shortest time allowed for the completion of the iddut
is thirteen days and two luhzahs, with the same remark
with regard to the second hthzah as has been already made
in the case of a free woman.' If the woman is not subject
to the courses, yet of an age when they usually appear, her
iddut is a month and a half, whether she bo the wife of a
free man or a slave. If she is emancipated and then repu-
diated, her iddut is that of a free woman. So also if she
has been repudiated revocably and then emancipated daring
* See post, Book of Furais.
* See anu, p. 101. .
168
DIVOBCE.
the iddut, it is to be completed like that of a free woman.
But if the repudiation were irrevocable she is obliged to
complete the uMut only as that of a slave, notwith^anding
the emancipation.
Iddut of a
Zimmeeah
game as of
a free
woman.
The iddut of a Zimmeeah is the same as that of a free
woman, both for repudiation and for death, though, accord-
ing to one tradition, it is that of a slave ; but this is rarely
accepted.
Iddut of a The iddut of a slave for the death of her husband is
deMhftwo months and two days. If she is pregnant she must
months keep iddut for the longest of two terms, namely, that just
days!"^ mentioned or till delivery. If she be an oom-i-wulud to
her master, her iddut is four months and ten days ; and
if repudiated rcvocably by her husband who then dies wliilo
she is still in her iddut, she is obliged to keep a new iddut
as that of a free woman ; but if she were not an oom-i-wulud
the iddttt for death incumbent on her would be only that
of a slave, while if the repudiation were absolute she would
only be obliged to complete the iddut required in the case
of divorce.
Case of a If the husband of a slave should die, and she is then
einanci- emancipated, she has to fulfil the iddut of a free woman,
pated . from a preference given to the side of freedom. And if the
master of a female slave, after having carnal intercourse
with her, should make her a moodubburah, and she should
Purifica-
tion of a
slave,
when ne-
cessaiy,
most be
observed in
aii caaea of
acquisi-
tion.
consequently be emancipated at his death, her iddut would
be four months and ten days ; whereas, if she were eman-
cipated in his lifetime, it would be three koorae.
Every one on whom it is incumbent to observe the
purification of a slave when he has purchased her, is
equally obliged to observe it when he has acquTred the
right to her by any other means, such as spoil of war,
composition of a claim, or inheritance ; and wheq purifica-
tion is not required in the first of these cases, it is not
required in the others. When a man who is the husband
of a slave purchases her from her owner, the marriage is
cancelled; but ho may lawfully have carnal intercourse
with her without purification. And if a slave should buy
a female slave and purify her, that would be sufficient for
IDDUT.
169
bis own master if be should desire to have carnal inter-
course with her.
If a*man should enter into a contract of kitabut or ransom Not neccs-
with a female slave it is no longer lawful for him to have
carnal intercourse with her ; hut if the contract is cancelled, cancelled
the prohibition is at once removed, and purification is not^'***“*'’
required before he proceeds to have such intercourse with
her. In like manner, when the master or the slave apo-
statizes from the Mussulman faith, qpd again returns to it,
purification is not required to legalize their intercourse.
When a female slave is repudiated by her husband her nor after
master cannot lawfully have carnal intercourse with her
till she has fulfilled her iddiit ; but the iddut suffices for diation.
purification. And if a man should purchase a female
enemy, and purify her, after which she embraces the faith,
any further purification of her is unnecessary. So also
when a moohrim, or person on pilgrimage, has purchased
a female enemy, and then purified her, any further puri-
fication is unnecessary before he proceeds to have inter-
course Avith her when it becomes lawful to do so at the
termination of his pilgrimage.
A woman
Mucellaneom Cases. repudiated
revocable
First. It is not lawful for one tvho has repudiated his cannot l)o
Avifo revocably to turn her out of his house, excejAt foro7hcfhut
some glaring impropriety, or at least for something inju-
rious to the other members of his family. And it isexc^tfor
forbidden to the woman herself to leave his house, except
on some urgent necessity ; and oven when such an occasion nor cun’
requires her going abroad, she should do so only at mid-,
night, and should return before tlie morning. On anyiiioper-
less occasion she cannot go out without his permission :
but where there is any urgent necessity, and the business urgent
cannot be otherwise accomplished, she may go out of his
house even without his permission. A woman repudiated repudUited
absolutely may go out whenever she pleases. revocabi/
Second. A woman revocably repudiated is entitled to^^‘*f4-"
maintenance, clothing, and a place to reside in daring her ance
iddut, day by day, whether she bo a mosUmah or zmmecdi.
170
WVORCR.
Not so one But a woman repudiated irrevocably bas no right to
i^^ted jjiaintenance or lodging unless she k pregnant, when she
is entitled to both till delivery. A woman enjoyed under
a semblance of right is bound to observe an iddut. But
is she entitled to maintenance in the event of her becoming
pregnant ? The Sheikh has answered this question in the
afQrmative. But the case is attended with some difficulty,
because it is supposed that among women absolutely
separated (from thov> with whom they may have been
connected) it is only the repudiated woman who is pregnant
that is entitled to maintenance.
C^es With more particular reference to a woman’s residence
Wll6rG A ^
woman it may be obseiTed, that if it has fallen to ruin, or, being
held only on lease or commodate loan, the term has
is obliged fexpired, she may be lawfully removed from it, or may
tolMvfher herself ; and if she is repudiated when living in a
residence place lowcr than she is entitled to, she may leave it
immediately for ono more suitable to her condition ; but
this point is liable to some doubt. Further, if the house
in which she is living at the time of the repudiation should
be sold, and her iddut is one of kooras, the sale is not valid,
because she is entitled to remain in it for their completion,
the time of which is unknown, and the sale is vitiated by
the uncertainty." If, on the other hand, the iddut is one
of months, the sale is quite valid, the uncertainty being
. removed. Again, if her husband should die, leaving several
heirs, they are not entitled to make a partition of so much
of the house as is necessary for her residence without her
permission, or till the expiration of her uldut, because she
4s entitled to a lodging in it. It would seem, however,
that after the death of her husband she has no right to a
residence except in the single case of her being pregnant.
When the woman is residing in her own house and makes
no demand for another residence, she is not entitled to
claim rent on account of her own house, because remain*
ing in it appears to bo voluntary on her part. In like
* It is a condition to the validity of sale that the thing sold shall
bo known at the period of contract.— /m. D., p. 24
IDDOT.
171
manner she would have no claim to rent if she should hire
a house .and abide in it during her ulchit, because, though
entitled to be provided with a residence, it is not where
she, but where her husband pleases.
Third. A widow has no right to maintenance even A widow
though sho be pregnant. According to one tradition, she ’
has a right to it in that particular case out of the share of mainten-
the child in her womb ; but the tradition is far from being the
generally allowed. , And she is entitled to live wherever
she pleases.
Fourth. If a repudiated woman should marry during Marriage
her uldut, the marriage is not valid, and the iddiit is not “
cut shoit by it.. So that if the second marriage is not during her
consummated, she continues in the uldut. And ®ven^^j“J*"‘
though it were consummated, the effect would be the same,
provided the husband were conscious of the illegality, and
that whether pregnancy follow or not. .. If, on the. other
hand, ho were ignorant of the illegality and pregnancy
has not ensued, the woman must complete the first uldut,
and then enter on another, on account of the second
marriage, according to the more generally received of two
traditions ; while, if she has become pregnant, and there
is anything to show that it is duo to intercourse with the
first husband, she mustj^ keep iddut till delivery on his
account, and then after the delivery observ'e another iddut
of three koorns on account of the second husband. But if .
there is anything to show that the pregnancy is the fruit
of intercourse with the second husband, sho is to keep
iddut on his account till delivery, and then complete the
iddut for the first after delivery. If there is anything to
show that the pregnancy is due to neither, she is to com-
plete after delivery the iddut of the first, and then renew
the iddut on account 6f the second ; while, if the preg-
nancy may possibly be due to both, it is said that lots
should bo cast between them, and iddut be observed on
account of the person to whom the child may be ascribed
hy lot. But this is attended with some difficulty, arising
from the fact of the woman being the wife of the second
means of the [connection under a sembltmce of right,
172 DIVOEOE.
60 that he should have .the preferable right to the
child.
From what Fifth. The wife of a person who is present with her
the time of the repudiation or death ;
ran. and the wife of one ivho is absent is to observe it, in the
event of repudiation, from the date of its occurrence, and
in the case of death, from the time of the accounts of it
reaching her, even though the tidings may bo brought to
her by a person who may not be trustworthy ; but she is
not to marry again till certain of her husband’s death.
And if she knows that she has been repudiated, but
does not know the exact time, she is to keep her iddtit
from the time of the tidings reaching her.
Anew /Sixth. When a man has repudiated his w’ifo after
u^ssary their marriage has been consummated, then recalled her
where a during' the iddut, and repudiated her again without touch-
woman is liig ber, she must keep iddut anew, on account of the fii'St
Ihirin'**tho nullified by the revocation. And if he should release
iddut her by a khoold after the revocation, the Sheikh has said
that in such a case the presumption is that there is no
iddut; but this seems to be far from correct, since it is
khoold from a contract which was followed by consumma-
tion. But if he should release her after consummation,
and marry her again in the kldxd^ and then repudiate her
l)eforc enjoyment, she is not bound to keep iddut, for the
first iddut was nullified by the bed (marriage), and the
second marriage was not consummated. It is said, how-
ever, that she ought to keep iddut, because the first iddut
was not completed ; but the former opinion seems more
agreeable to the general principles of law.
Connec- Seventh. Connection under a semblance of right does
not induce the necessity of hvdd, or specific punishment,
l))aTicc of but requires an iddut ; and if the woman was aware of its
qmregnn ^^^‘'g^hty, but the man ignorant of it, the nuevb, or child’s
iddut. paternity, is to bo ascribed to him, while she is obliged to
keep iddut, and is subject to the hudd, but not entitled to
dower. If the woman was a slave, the child is to be
ascribed to the man, who is liable for his value to the
woman’s master as at the time of its birth, together with
IDDUT.
173
the dower of the slave, which, accordihg to a tradition, is
a tenth (of her value) if she was a virgin, and a twentieth
if otherwise. when nwo-
Eiglith. When a man has repudiated his wife ahso- ®
lately, and then had connection with her under a semblance called, and
of right, the two iddiits are mingled together,’' because they
arc on account of one man ; and this seems proper whether her under a
she be pregnant or not. of right.
Ninth. When a woman has married in the iddiit for a Twouldufs
revocable repudiation, and become pregnant to the second pecessarv
, j. o ju case of
husband, she is to keep iddut for him till delivery, and pregnancy
then complete the iddut for the first after delivery;
the first may recall her during this uldiit, but not during during the
the time of the pregnancy.
’ Arab. Tudahhool.
BOOK III.
OF SIIOOFA, OR PRE-EMPTION.
Shoofd is tho legal title of one partner in joint property Definition,
to the share of another partner^ therein, in consequence of
its transfer by sale.
CHAPTER I.
op THE THINGS IN WHICH SHOOPA IS ESTABLISHED.
The title of Shoofd is established with respect to lands,® The right
such as dwellings,® vacant spaces, and orchards, by general
consent. With regard to moveables, such as wearing- to lands;
apparel, household utensils, shipping, animals, and the
like, there are different opinions. Some doctors have
maintained that the right extends likewise to these, to
obviate the inconvenience of division, and further upon tho
ground of a report to this effect, by Yoonm, from the
Imdm Jafer Siidiky on whom be peace. Others, again,
have limited tho title to the former class, upon the principle
that the conferring of dominion over tho property of a but not as
Mussulman ought to bo restricted to those cases on which
all are agreed, and also because the report alluded to is weak
or not well authenticated. This latter doctrine is the
most approved.
‘ Arab, shureek. According to tlie Hanifites, not only a partner
in the property, but also one in its rights, and a neighbour, have a
legal claim to pre-emption. — J).., p. 476.
® Arzeetif pi. of arx,
® Musakin, pi. of muskin.
176
bhoofA.
Trees, &c.. With respect to date and other trees and buildings,*
if sold as appendages of the ground- on which they stand,
when sold the privilege of ShoofA is fully established ; but if
^nnd*; separately and distinctly, the same difference of
bnt not so opinion above stated exists, and upon the same principle
scparutciv. ^bo most approved doctrine in this case also rejects its
operation.
wmxtCTd observed that some of our doctors distinguish
the right between slaves and the lower animals, allowing the right of
to slaves. ShoofA in respect of the former, though denying it in the
case of the latter.
ns*to wmo With regard to the establishment of ShoofA in respect
immovable of rivulcts, way's, baths, and other property the division of
InoaiSe ^bicli would occasion loss or damage, a considerable degree
of division of doubt has prevailed. But the most approved opinion
wthout jenieg itg operation as to these. By damage we understand
such as would render the property useless after division, in
which case the person who would bo injured cannot bo
compelled to make a partition.* Where, again, the bath,
or way, or rivulet, is of such a character that its utility
would not be destroyed by division, the co-owner may bo
compelled to admit of a partition ; and if he should sell his
share, the right of pre-emption would have effect in favour
of his partner.®
The right In like manner, in the case of a well to which there is
tends to a waste ground adjoining as an appendage, so as to admit of
the'ad"'^ a division without loss, by surrender of the well to one
joining pcrson, and of the land to the other, here also the judg-
gronnd. jjjgjjj j,f would enforce a partition of the joint property,
and establish the right of pre-emption if one partner should
sell his share. With regard, again, to the apparatus of a
well, such as wheels and buckets made use of in drawing
water, which, though strictly moveable, are by custom never
removed from the well, there is some doubt whether the
* Abneeut,
‘ A mere diminution of value would prevent a compulsory parti-
tion, according to the authority cited in the Im. D., p. 426.
' It would seem, from this, that the right of thoofa is in some
way dependent on that of partition.
THINGS IN WHICH SHOOFA IS ESTABLISHED. 177
right of shoofd applies to those when sold together with the
ground; but with respect to the ropes on which these
buckets are suspended, their exclusion from its operation
is universally allowed, except by those who maintain that
the right attaches generally to every kind of property sold —
a doctrine which we have already shown to be the least
approved.
The right of pre-emption has no effect with respect to
fruits, even when sold on date or other trees in connection althouirh
with the roots and gi’ound which they occupy. It is other-
wise ill the case of lands which have been divided off, where on which
the roads or rivulets passing through them continue to be
held in joint property, and one of the partners in the latter affects
sells his share together with his portion of the divided
land ; for there the other partner’s right of pre-emption divided off;
attaches not only to the share in the road or rivulet which part^er-
was held in joint property, but extends also to the portion ship in tiic
of the land divided off, as being connected in sale with the
other. If, however, the land should be sold separately, passin^^
there can be no ground for the claim of pre-emption in respect
of it ; and even with respect to the road or rivulet which
continued in joint property, it is only when sufficiently wide
to admit of a division that the right can attach to either of
them.’' I and not
If a person should sell a piece of land his own exclusive subject to
property, and with it his sharo in another joint tenement,
by one sitjkut or bargain," the right of pre-emption attaches sold
to the share exclusively, at a due proportion of the general
price. other liiud.
It is an indispensable condition of the right of
emption, that the share of property to which the claim is of by sale
preferred should have been actually transferred by sale, for
if it has been assigned as the dower of a wife, or given in by it ;
charity, or bestowed by way of gift or in composition for a
debt, it is by no means subject to the claim of pre-emption.
In like manner, if a mansion should be partly mikf, or person cn-
* See ante, p. 176.
* Literally, “ striking of hands.''
PABT II. •
178
siioorA.
titled to
the benefit
of a wukf
has no title
to claim it.
iippropriatccl to pious or charitable purposes, and partly
free, and the latter portion of it is sold, the person entitled
to the benefit of the appropriation has no right of pre-
emption, not even if he be a single individual, because he
is not the proprietor of the substance of the and is
entitled only to its usufruct.
( 179 )
CHAPTER II.
OK THR SHOPEE OR PERSON TO 'WHOM THE RIGHT OP
PRE-EMPTION BELONGS.
The Shii/ei; is every partner of a share in joint and The right
undivided property who is able to pay the price at which it bdoni^"to
has been sold. It is, however, a condition that he be a every part-
Mooslm when the purchaser is of that religion.
There is no privilege of pre-emption to a neighbour, but not
nor in property tW has been divided, unless the road or
rivulet of water running through it is still hold in partner-
ship. The privilege is established by general assent when K affecu
there are only two partners. Wlieu there is more than eSwof two
one claimant opinions are divided. According to one ofpwtn'vs.
those it is established absolutely whatever be the number.
Ry another it is established with a plurality of partners in
the case of lauds but not of a slave. By the third it is not
established in respect of anything when there is more than
one partner. And this last opinion is the most prevalent
and best supported by traditional authority.*
The right of slionfd is extinguished by the ahufee's
inability to pay the price, and also by his delay to claim delay to
the privilege, or absconding at the time of sale. If he®***'** *‘5
should claim the privilege, but allege the absence of funds
to pay for it, a delay of three days must I)e allowed to him,
at the expiration of which, if he is unable to produce the
money, Us right is extinguished. If, again, he should
assert that his property is in another city, a delay pro-
' According to tiie Hanifites, several persons may liave the right
and exercise itf—D., p. 494.
180
hhoofA.
but not by
absence,
minority,
&c., in
which
cases the
guardian
should
exact it ;
and his
dereliction
docs not
affect the
right.
It holds in
favour of
inddels
against
infidels,
but not
against
bclicvci’S.
portionate to the distance should be given him, to enable
him to obtain the money, and three days additional, unless
the purchaser would be injured thereby.
The privilege of slioqfa is established in favour of
absent persons, and such as ore imbecile, insane, or
minors, of all of whom their guardians should avail
themselves of the right, if for the advantage of their
wards ; and if the guardian should abandon the claim,
the minor on attaining to puberty, and the insane person
on recovering his reason, may still assert it, because iu
either case there is a sufficient legal excuse for the delay in
prosecuting it. Wliere, again, the assertion of the claim
is of no advantage to the ward, hut the guardian has
nevertheless assumed it, such assumption is invalid, and
may be repudiated by the party himself on attaining to
puberty or recovering his reason.
The right of slioofd is established iu favour of an
infidel against a purchaser of his own persuasion, but
not against a Mooslim, even though he should have
purchased trom a Zimmee or infidel subject.^ But it is
established in favour of a Mooslim against a Mooslim and
an infidel.
A fatlicr If a father or'gi'andfather should sell the shore of bis
fatherwil- grandchild in property held in joint ownership
ing his
child's
share fn
property
held jointly
with him-
self, may
assert the
right of
pre-emp-
tion.
with himself, he may lawfully assert the right of pre-
emption in his own favour, any ground of objection being
obviated by the consideration that it is no more than sell-
ing the ward’s share directly to himself.' But has an
executor the same power ? The Sheikh has answered this
question in the negative, on account of the suspicion which
naturally attaches to such a transaction ; the affirmative,
however, appears to be better supported, as in the case of
an agent who may lawfully claim the privilege in such
circumstances.'
' Tills distmetiou is not recognizod by Uie Hanifites. — D., p. 473.
’ Which it is quite lawful for him to do. — Im, D., p. 14.
* That he can lawfully sell to himself, see ibid. pp. 16 and 10.
and post, p. HVi.
THE SHUFEE OR PRE-EMPTOR.
181
A imokatuh^ may assert a right of slioofd and his master It also
cannot object. But if an agent in Moozaruhut^ fl^Jour ofa
purchase property of which the owner of the capital stock mookatuh ;
is the nlmfeCj the latter would become the proprietor by aJJ
the mere act of purchase, and not by virtue of any right of Moozaru-
pre-emption. Nor could the agent make any objection
unless there should appear to bo some profit on the
transaction. Ho would, however, be entitled to the hire
of his agency in the transaction.*^
* A slave with whom liis master has entered iiito*a contract of
emancipation for a ransom.
® A contract in which the capital is contributed by one party and
the labour and skill by the other, with a mutual participation of
profits. See ha. 7)., p. 43d.
’ The author here enters into a long digression, comprised in what
ho terms ten branches, on the supposition of the right of shoofd being
established when there is plurality of shufees. But as he has admitted
that the doctrine which rejects the light m such a case is most in
(^onfonnity with traditional authority, and the branches afford no
illustration of* general principles, I have omitted them entirely as of
no practical utility. They also appear to have been omitted in the
Digest of hnameea LaWf compiled under the supbrintcndcnco of
8ir William Jones.
182
shoofA.
CHAPTER III.
OF THE IS WllCIt TUB CLAIM OF SHOOFA IS
TO BE ASBERTKl).
elusion
of tho
contract
A shufte The nhufee is entitled to assert his claim on the conclusion
Jo claim*' 0^ ^>^1® contract and expiration of the option,* for it is then
on the con- that the contract becomes binding. Some doctors, however,
maintain that the right is established by the mere contract,
without waiting for tho expiration of the option, on the
principle that a transfer is legally effected by the mere
contract ; and this opinion is tho most generally approved ;
ivhile in cases where an option is stipulated only to the
purchaser there can be no doubt that the shvfee'a right is
established on the mere conclusion of the contract,' which
in such case completes tho transfer to the purchaser.
A sJmfec is not entitled to relinquish his privilege in
raercisc of part and to exact it as to the remainder of the property to
his ri^t ; applies j on tlie contrary, must take the whole
*s^ abandon his right entirely. Further, he must take it
Ittil price, at the price of tho contract whether more or less than the
HsWefor* share; but, on the other hand, he is not
contingent liable for any contingent charges incurred by the purchaser,
charges, brokerage, agency, or tho like,
tatl^or' purchaser should add something to the price
the price after completion of the contract and expiration of tho
but not to
partial
' The doctrine of option in contracts is fully explained under Hie
head of sale.— /m. IJ„ p. 33.
’ From what is said {po$tf p. IDl) it would seem that it is only
when the option is reserved to the purchaser that the Sheikh con-
sidered the right of ehoofd to be established on tho mere conclusion
of tho contract.
MANNEB OF ASSEBTING THE CLAIM OF SHOOFA. 188
period of option, such addition is not considered in law an after eon-
increase of the price, but a gift, and the shvfee is under
no obligation to pay it. In cases, again, where this tract docs
augmentation is made during the pCriod of option the
Sheikh has declared that it constitutes a part of the
original price, and is the same as if stipulated for in
the contract; but this opinion is attended with some
difficulty, as being inconsistent with what has been already
said of the transfer being completed by the contract.” In Who, on
like manner,- if the seller should make any abatement from {,„* joes
the price, such abatement is unconnected with the contract, no* benefit
and the purchaser is by no means bound to surrender the abatemeu'-.
share until he has received the full price originally agreed ^^om it.
upon.‘
If a person should purchase by one bargain or mfhit Where a
a share in property, together with something to which gold with
the right of ahoofa does not ajtply, the share may be
taken at its proportion of the general price, and the «Aoo/d doca
purchaser has no option, in consequence to rescind
contract, because the claim of ahoofa is supervenient on may take
what is his own property.
If the price bo of the class of similars, such as gold
or silver, the shufec must produce a similar to it, that is, consiat of
an equal quantity of cither metal. Where, again, there is
no similar to the price, as where it is an animal, or a discharged
piece of cloth, or a jewel, some doctors have said that the ;
right of ahoofa must drop for want of a similar to the price, «>d where
and also by reason of a tradition by Aly Ben Jiahey from the g™^fic
Imam Jafer Sadilc, on whom be peace. Others, however,
maintain that the ahufee may take the article at its value ^
at the time of purchase ; and this doctrine is more generally
approved.
A aJmfee should prefer his claim as soon as he is -A nccej-
informed of his right ; but should ho delay to do so from to claim
any necessary cause preventing his personal appearance, or J**®
the appointment of an agent to assert it on his behalf, his not extin-
* Ante, p. 182.
* According to the Hanifites, the ak^fee is entitled to the benefit
of the abatement. — JJulayah, vol. iv. p. Trane., vol. iii. p. 581.
184
bhoofA.
(TD^b tho right is not extinguished. In like manner, if be should
iior even abandon his claim, supposing tho price to bo high when
(lereiiction rcolly moderate ; or that it was gold when it
of it, when turns out to be silver ; or an animal when it proves
uiKm'ciw some other article ; his dereliction in such circum-
ofinfjr- stances would have no effect in extinguishing his right,
uiation. j^2so, if he were imprisoned for a claim which he is
unable to discharge, or is unable to appoint an agent to
prefer a claim on his behalf, the apology would be sufii*
cient to preserve his right notwithstanding ]his delay to
assert it.
Tho It is at tho same time incumbent on him to use all
howvcr is diligence in preferring his claim as soon as ho
bound to becomes acquainted with bis right, that is, so far as is
customary, in so much that when travelling with that
( X|icdit.ion intent, he is not obliged to use greater expedition in his
journey than is habitual to himself. Further, should ho
claim; be engaged in tho performance of any religious duty,
whether indispensable or discretionary, he is not obliged
to break it off, but may lawfully wait till it is completed.
In like manner, if the time of prayer is at hand, he may
lawfully wait till he has purified himself, and then per-
formed his devotion without hurry or restraint. Again,
should he receive intelligence of the occurrence of his
right whilst on a journey, and be unable to prosecute his
* claim by personally appearing or appointing an agent, tho
nnd sbonld right is not extinguished, even although he should also
It'w^OTt to ®po*i witnesses to attest his intention to
a valid demand it.* If, however, while able to use the proper
exertions, either in person or by appointing an agent, be
lost. should neglect to do so, his right is entirely lost.
It is not The right of shoofd is not annulled by a dissolution of
rdi°wiiu- ^^0 sale on the part of the seller and purchaser, because it
tim of tho is established by virtue of the original contract, and cannot
be cut off by any subsequent act of the parties. More-
over, the durk, or future responsibilities, rest still on the
* Tilts should not he omitted, according to the Honifites.— A,
p, 483.
MANNER OP ASSERTING THE CLAIM OP SHOOPA. 185
purcliasor. " True, that if tho shifee should acquiesce in
the sale, and the buyer and seller should then concur in
dissolving it, he could not again lay claim to the privilege,
because the dissolution of tho contract is a cancellation,
not a sale dc novo.
If the purchaser of a share in propeiiy should sell it. Sales and
tho shvfee is entitled to annul tho sale, and take the
property from tho first purchaser ; and ho may also take the pro-
it from tho second. So, in like manner, if tho purchaser
should make a wukf, or appropriation of tho property to chasermay
any special purpose, or should convert it into a musjid or ^p^by
place of worship, the ahufec may do away with all such the shufee.
acts, and take possession of the property under his right
of pre-emption.
The takes the property from the purchaser onThesAw/ee
whom the ilurk or future responsibility lies, and does not
take it from the seller, except that if, when he makes his I'rom tho
demand on the purchaser, tho property is still in tho
hands of the seller, it may fairly be said to him, “ Take it »«'•«*■» . .
from the seller, or relinquish your right ; ” and the stiU in hU
purchaser cannot bo put to the trouble of taking posses- possession,
sion from tho seller if he decline to do so, even though
required by the shufee. In such circumstances, the •
Hhifee's possession comes into the place of the purchaser’s,
the (lurk, however, or responsibility for future claims, still
resting on the purchaser ; and the shufee has no right to
cancel the sale. On the contrary, if ho attempt to do so, and
take possession from tho seller, tho act would be invalid.^
If the subject of sale should perish or become damaged. If the
and this happens either by the act of the purchaser, or
without his instrumentality, before demand by the shufee, rota, pre-
the latter has an option, and may take tho property at the "
full price, or abandon it entirely ; and, in the event of his
taking it, he is entitled to all the ruins or fragments that ^
* That is, as the shifes takes his title from tlie purchaser, the
latter remains responsible to liim, notmthstonding the dissolution,
for all future elnimH that may bo made against his title.
^ If valid, the act would necessarily be suicidal, as Ins own right
is dependent on the sale.
186
SHOOFA.
take it at remain, whether they are still on the spot or have been
pricc'or removed from it, because they are obviously opposed to
^injinieli part of tho price. If, on the other hand, the injury to the
bayf ' ^y purchaser after demand by
damaged the slutfet’, the purchaser is responsible, although some
bjr the doctors have denied his responsibility, on the ground that
subsequent the shu/ce docs not become proi)rietor in virtue of his
demand, hut rather by taking possession. The first
sponsible, opinion, however, appears to be better supported and more
generally adopted.
If the If the purchaser of ground subject to tho right of
plant trees shoofu should plant trees or erect buildings upon it, and
buildings should afterwards demand possession, the pur-
be is chaser is entitled, if he think proper, to pull up and
entitled to remove his trees and buildings, and it is not incumbent
tiicm ; on him to level the ground ; but, on tho other hand, it is
optional to the sluifee to take it at tho full price, or to
niiiUboald liis right altogether. If, again, the purchaser
ho ciecliue should decline to remove his trees or buildings, tho ahtifee
to do so, , . ... ,. , ...
the s/i»/ee has three things in ms option : he may either remove them
purchaser a compensation for any loss
his option, he may sustain thereby, or ho may take possession of the
whole, paying, in addition to the price, tho value of the ,
trees or buildings, which thus become his property, with
the consent of the purchaser, or he may abandon his claim
altogether.
An in- If the subject of shoofii should increase in such a
manner that the increase remains connected with it, as,
with the for example, if a young plant or shoot of a date or other
to together with the ground on which it stands,
the^u/ee; and it becomes enlarged by natural growth, the advantage
ratcd^,T(’^ belongs to the nkn/ee ; but if the increase be separated
i«longa to from the original subject, such, for instance, as of residence
ciieser. in a mansion, or the fruit of a tree, it belongs to tho
Case of a purchaser. If, however, a date-tree should blossom in the
wiIkhhM W®*"’® possession, but is assumed by the ahufee before
only bios- impregnation," the Sheikh, to whom God bo merciful, has
a
* Arab, taheer. It aeems to be the universal practice in Arabia
to impregnate tho female date-trees. — /m. D,, note, p.
MANNER OF ASSEBTINa THE CLAIM OF SHOOFA. 187
declared that the blossom in this case belongs to the 8omed,and
shvfee, considering the blossoms in the same light as the
branches; hut this principle applies exclusively to sale hyofbytho
traditional authority, and cannot, therefore, be extended
to the case before us, according to the most approved pfegnatioa
opinion." place.
If a person should sell his shares in two mansions, a shufee
and the partner or xhiifce in both is one and tho same „„
person, he may take or abandon both, or he may take one may take
■ )th <
and forego his claim to the other.
But in the case of**®*®^,.
one at hia
a single mansion he cannot assert his claim as to part option,
of it, and forego his claim to the remainder.
If the price 'is a specific article and it turns out to be If the
the property of some other person than the purchaser, there *0^1,"'’’
can be no right of shooju, for the sale is null. But if tho tlw pro-
price was not specific, and merely stipulated for in general
terms,“ the right would be fully established, because the this can-
purchase would be good in such circumstances. And^ica‘,^,1
although the price after delivery by the slmfn should turn ‘to right
out to bo the property of another person, that would not
aifcct his right in either of the cases supposed.
If tho subject of sale should appear to bo defective. Any com-
and tho purchaser in consequence should receive a com-
pensation for tho defect, the thufee is entitled to a similar received by
deduction from the price. And if tho purchaser should
determine to keep the subject of sale ■without seeking any must be
compensation for the defect, the glmfee must either take tiio»%te.
it at the full price or abandon his claim altogether.
Mhcellaneons Cases.
First. If a person should say, “ I purchased the half Sh^ee’n
for a hundred,” upon which the shufee relinquishes his JJft
claim, and it subsequently appears that the fourih was roUnquish-
purchasod for fifty, the privilege is not lost, and he may miainfor-
still assert his claim. So, also, if it were said, “ I pur- mution by
tlio pur-
® The fruit of an imimprcgnated dato-ti’cc belongs to tlio buyer
of tho tree . — Ihul p. 67.
As if it were a quantity of some commodity estimable by weight
or measure.
188
shoqfA.
clmscros cliased the fourth for fifty,” upon which the shufee
terms of i^hn^uished hia claim, and it should subsequently app^
I'M pm*- that the half was purchased for a hundred, the privilege
would not be lost; because in the one case the shufee
might not be able to give the larger price; and in the other
he might not be inclined to avail himself of the defective
or partial sale.
Ura bythe 'Second. If, when intelligence of the sale has reached
shv^ee that the shvfee, he says, ‘‘ I have taken the thing sold under
my right of pre-emption, being at the time cognizant of
his right the price,” the declaration is valid ; but not so if he was
liTwere^ at the time ignorant of the price. And even though he
ignonmt of should say, “ I have taken it at the price whatever it may
tlie price, amount to,” still the declaration would be invalid if he
were ignorant of the actual price, as leaving room for
deception wliich ought to be avoided.
The price Third. The price must first be delivered by the shnfee,
should refuse to deliver it, the purchaser is not
purchoacr bound to make delivery of the subject of sale till he has
delWwy. received the full amount.
Kelin- Fourth. If the shufee is informed that there are two
purchasers, and thereupon abandons bis claim, after which
thufet, on it appears that there was only one, or if bo was informed
that there was only one purchaser, and it turns out that
rcf^ing there were two ; or should he bo told that the purchaser
bought for himself, and it afterwards appears that he
not inra- bought for another, or the reverse of this is the case, in
right instances the right is not lost, because in each
he might have a different object in view which was
frustrated by the false information.
Shoofl Fifth. When the subject of sale is a sown field, it
must be suffered to remain in that state until the crop is
on sown gathered,^ and the shufee may either take immediate pos*
the'erop^ U ^® ground, allovring the crop to remain, or he
gathered, may wait until it is reaped ; because in this option he has
a manifest interest, viz. the use of his money, while he
is debarred from all benefit from the land, which is
“ See Jm. D., p. 60.
MANNER OF ASSERTING THE CLAIM OF SHOOPA. 189
rendered useless to him by the crop remaining on it.
There is, however, some doubt as to the legality of this
delay without prejudicing the right of shoofd.
Sixth. If the seller should ask the Hhiifce to dissolve Dissolu-
tho sale, and he should do so, the dissolution would be
invalid, because it is only the contracting parties them- at request *
selves, that is, the seller and purchaser, that can dissolve
a sale.
190
shoofA.
CHAPTER IV.
APPENDAGES TO THE ASSUMPTION OP PKOPEETT UNDEB A
EIGHT OP SHOOPA.
In ease of First. When a person lias purchased for a price de-
or on credit, the Sheikh has declared in his Mub-
the shufee soot that tlio skiifee may take possession immediately on
^'^»ion, doMTi the price, or may wait till the stipulated time
o£ payment arrive, and then pay the price and take pos-
session.^ But the same author has stated in his Nihayah,
shtifce may take immediate possession of the
due. subject of sale on his own responsibility for the price,
provided that, if not in opulent circumstances, he must
give security for the amount. And this doctrine is the
more approved.
The right Secowl. Mofned and Moortnza have both pronounced*
her^rry* nhoofn to be hereditary. But the Sheikh has
declared that it is not so, founding his decision on a report
by Tulha lien Zeyd, who, however, is a Butturee ; ® and
the first doctrine is more approved, as being agreeable to
the general and comprehensive sense of the sacred text on
the subject of inheritance.''
' 'lliut is, he is not entitled to the benefit of the .credit, which is
agreeable to tlio Hanifeea doctrine on tlie subject. — 27., p. 401.
* A particular sect of the Zeydiatu, held in necessary detestation
by the foltoivers of the twelve Imam, as disputing the title of
their seventh spiritual lender, the Imam Mootey Kanm, son e/Udfer
SMik, in favour of another brother. — See Sale’s Preliminary Dis-
course to his Translation of the Koran.
* According to the Hanifites the right abates on the death of tlie
ehufee. — I)., p. toy.
on givine
security ror
the price
ASSUMPTION OF PllOFKllTi' VNJ)Kll SlIOOl'A. 15)1
Third. Tlio right is inherited like any other property, like any'
so that if the Hhufee should leave a widow and a clrild, the p^^rty
widow would take au eighth and the child the remainder.
Further, if oue heir should relinquish his share of the
right, it would not drop or be extinguished, but the other
might take the whole. This, however, is liable to some
slight doubt.
Fourth. When the hIiuJ'i'c. sells his own share of the it is cx-
proporty, with a full know’ledge of his right of pre-emption,
the Sheikh has declared that his right is extinguished, »hufee
because such share is the sole ground of his claim ; but ^n”*arc
that if ho should sell his share before he has been informed of Ae
of his right, it would not bo extinguished, as existing 1’”*^***^ >
previous to his own sale. It would, however, appear to bo
better to say that in neither of these cases would ho have
any claim to the exorcise of the right.
Upon a principle formerly laid down by the Sheikh,* ^ ^
it would follow as a necessary consequence, and the Sheikh in first
has declared, that if a parinor should sell his share of any purchaser,
joint property with an option to the buyer, and the shufee
should aftenvards sell his own share, the right of shoqfu in
such share will belong to the first purchaser ; whereas if in
the first contract an option had been reserved to the seller,
or to both the parties, the right of shoofu would belong to
the seller ; because, in the first case, the transfer would be
completed by the contract alone, while in the second, its
completion would not take place till after the lapse of the
period of option.®
Fifth. If a person on his deathbed should sell his shore in the case
of joint property to one of his heirs by a contract of
‘inuhahat, that is, for a price under its value, and if the deathbed,
* See ante, p. 18:1, note *. It would seem tlwt the Sheikh was of
opinion that it is only m cases where an option is reserved to the
purchaser tliat tlie right of shoo/d is established by tlie contract of
sole, without lapse of the period of option.
‘ The more prevalent opinion being tliat tlie transfer is com-
pleted in both coses by the contract alone, the right of thoo/d
ought to belong to the first purchaser alike in both. — See ante.
p. 18a.
192
SHOOFA.
tliejp/iM/ctfj abatement does not exceed a third® part of his estate,
oi^rato^” the contract of sale is valid, and establishes a right of
pre-emption in the partner of the deceased. Should the
the share abatement exceed a third part of the deceased’s estate,
as is com- tjjg other hcirs refuse to ratify the sale, it is valid
fbr hy the Only to sucli extent as is opposed to the price, and so
price, and much more as the third of the estate will admit of: and,
so niucii ^ ^
more of it Consequently, to this extent only the privilege of shoofd
withiin*ii operate in favour of the partner. Some doctors, how-
thinlofthe ever, have maintained that the muhabat is good as against
eS™** * whole of the deceased’s property, and that the sJaifee
is accordingly entitled to take the whole, on the principle
that no limitation to a third can affect deathbed acts,
which arc absolute and unconditional.
The right Sixth. If a slivfee agree to compound his privilege for
'^i'*hcd b ® compensation, it is valid, and his claim is thereby cx-
§ie«AMyee^ tinguished ; for it is a right to property, and, therefore.
Mmponnd- ^ fit subject of composition.
c . ..7. rr „ 4^
Seventh. If a share of joint property bo sold, and the
shiifee should himself become zamin b'il diirk, or general
security, either for the seller or purchaser, or if both
sale, or
but not
by his
should stipulate an option to the shitfee, his right of pre-
emption would not be extinguished in either case.
Neither would it be so if he acted as agent in the sale
for cither of the parties.’’ Upon this point, however, there
is room for some doubt, founded on his apparent acqui-
escence in the sale.
Eighth. When the ahii/ee has taken possession of the
ing posses- discovered a defect in it which existed prior
Sion roar to the Sale, then, if both he and the purchaser were aware
of the defect, neither has any option in the matter; but if
they were both ignorant of the defect, and the shufee
returns the property to the purchaser, the latter has an
option either to reject the sale altogether, or to demand
a compensation for the defect from the seller. If, however,
the shufee should elect to retain the property, the purchaser
as
fluent fur
either
party
therein.
The shufee
after tak-
retiim
property
fora
delect.
* To which afliount the operation of deathbed gifts is limited.
■-Post, p. 20».
’ See ante, p. 180. .
ASSUMPTION OP PROPEBTY UNDER SHOOPA. 193
has, in that case, no right to cancel the sale, because tlie
share has passed out of his hands. And the Sheikh has
said that he has no right to demand a compensation
for the defect ; but on this latter point tho more prevalent
opinion is in favour of his claim. So also if the shvfee
were acquainted with the defect, and the purchaser ignorant
of it.® But if tho purchaser was informed of it and not
tho shffee, tho latter only would have tho right of
rejection.
Ninth. If a person should sell his share in joint property ^
for a specific thing which has no similar, as a slave, for price wlicn
example, and we adopt the doctrine that, in such a case,
there is no right of jore-emption,® nothing farther is to be article,
said. If, on the other hand, we adopt tho more prevalent
opinion which supports tho right of the shnfee on payment
of tho valuo, and ho avails himself of his privilege, but tho
slave, for example, is found to bo defective, tho seller has
a right to return him to tho buyer, and demand from him
tho full valuo of tho share, unless prevented by some recent
obstacle, such as a now blemish occurring in the slave
while in his possession ; but cannot demand restitution
of the share from tho shufee, because no subsequent can-
cellation of a sale originally valid can extinguish the right
of shoofd. Further, should the share revert to the pur-
chaser by a new title of property, such as gift or inherit-
ance, ho cannot return it to the seller ; nor, if the latter
should call upon him to do so, on account of tho defect in
tho price, is ho bound to comply with the request. Again,
if in tho like circumstances tho value of the share were less
than tho valuo of tho slave, the shufee, according to the
most prevalent doctrine, has no recourse for the difference,
for the price to liim is that which was stipulated in the
contract. Further, if whilst the share remains in possession
of tho purchaser the seller should reject the price in conse-
• That is, tho shufee having no option in the case, tho purchaser
could not cancel tlio sale, but ho would still have a right to claim
compensation for Uie defect, which, when obtained, must in all cases
bo allowed to the shttfect in abatement of tlie price . — Antey p. 187.
® See ante.f. 183.
.PART II.
•o
1D4
SUOOFA.
quence of the defect, he cannot thereby prevent the ihufee
from exercising his right, for it was established prior to
the rejection, and he is entitled to take possession on
paying the value of the price, that being what the contract
required, and the seller has merely a right to the value of
the share from the buyer. If, again, the value of the share
were more than the value of the price, and any now
obstacle has occurred whilst it remained with the seller
to prevent its return, he may have recourse against the
purchaser for a compensation for the defect, but has no
such recourse against the nhifee, since he took the share
for the value of an exchange or consideration supposed to
be free from defect.
Case «>t 'Tenth. If a mansion is the joint property of a person
shai^in**^ ou the spot and one who is absent, and the share of the
theabaence absentee being in the hands of a third party is sold by him,
owner, by alleging that he has the authority of the absent owner, the
a person Sheikh has said in his Khilaf that the right of shoofd is
tThavfhw established ; but the contrary would seem to bo the
antbority. more approved opinion, because the right of shoofd is
dependent on the validity of sale, which cannot be esta-
blished without the owner’s consent. If, therefore, the
shtifee, has taken possession of the mansion, and the owner
should appear and admit his authority for the sale, there is
no room for objection ; but if ho deny it, his assertion upon
oath must be credited, and he will recover not only bis
share in the property, but also the hire or rent thereof,
from the time that possession of it was taken until it is
restored ; and his claim for rent may be made against the
seller, as the primary cause of his loss, or against the
shufee, as the immediate agent therein. Should ho elect
to proceed against the pretended agent, and recover from
him, the latter has no recourse against the shufee ; whereas,
if ho sue and recover from the shufee, the latter has a good
ground of recourse against the agent, ou account of the
deceit practised against him. The Sheikh has expressed
a different opinion, but this is the most approved and pre-
valent doctrine.
If a person should purchase a share, of joint property
ASSUMPTION OP PBOPEBTy UNDEB SHOOFA. 196
for a hundred (deenars), and deliver to the seller an article
equal in value only to ten, the shifee is nevertheless hound
cither to pay the full hundred or to relinquish his claim ;
because the price which he must pay is to be determined
by the contract of sale, not by any subsequent arrangement
between the parties.
Qiwstions connected with the voiding of the light of Shoofd.
Shoofu is extinguished by a failure to institute the ShoofA is
claim after information thereof, unless under some valid
excuse.’® Some doctors have maintained that no delay claim it
can extinguish the claim unless it is expressly released by linden*
the party himself; but the first opinion appears better excuse ;
supported by traditional authority. Further, if a shufee but not
should himself expressly relinquish his claim previous to
sale of the property, the right is not thereby forfeited in relinquisb-
thc event of a subsequent sale, because that would bo can-
celling a right which has no legal existence. This doctrine,
however, is liable to difficulty, and has given rise to a
difference of opinion ; ” and the same difficulty applies to
the case of a shufee being present and witnessing the sole,
or congratulating the purchaser or the seller on the con-
clusion of the bargain, or authorising the former to make
the purchase; in neither of which cases is the right of
shoofd. extinguished, because none of them affords a
stronger proof of acquiescence on tho part of the shvfec
than his express declaration before the sale.
If intelligence of tho sale is convoyed to the shufee in A delay
such a manner as to establish the truth of its having taken
place, such as tho concurrence of several successive reports,
or the testimony of two upright witnesses, notwithstanding informor
which he delays to prefer his claim, J>retending to distrust
their authority, the right is forfeited, and such pretext vdves a
cannot be admitted in law. If, on the other hand, bis
information was received from a youth under age, or from
afasik, or profligate person, he is not bound to receive it, nation
'® Ante, p. 184.
“ On the ground of acquiescence.— See ante, p. 102.
196
shoopA.
docs not and liis right is not forfeited by the delay. So, also,
Icga?**^^** his right is not forfeited if the information is conveyed
evidence, to him by only one just person, and he fails to act upon
it, because the evidence of a single individual is not proof
in law.
When the jf the purchaser and shiifce are ignorant of the
not bo as- pricc (having perhaps forgotten it) the right is necessarily
th^riKht is ®^tinguished from the impossibility of delivering the price,
necessarily and if the property to which the right applies is in a distant
gnished shttfee postpones his claim until his arrival
Also when there, this invalidates his title altogether,
it turn.s
out to be
the pro-
perty of
another ;
or i.s
known to
have been
usurped ;
or is lost
Further, if the
price paid by the purchaser should turn out to l)e tho
property of another person, this also, invalidating tho sale,
has necessarily the same effect on tho right of tho shtifee.
In like manner, if both the purchaser and shtifee knew tho
price to have been usurped, or if tho latter only should
acknowledge this fact, he is thereby debarred from making
any claim. And further, where a specific article stipulated
c(l prevh^ ^® tJi® P”®® perished previous to possession of it by
OU8 to poa- the seller, here also, the original contract being null, tho
thescllcrf right of shoofd also becomes void. This point, however, is
the subject of doubt and difference of opinion,
whlch'the^ Some of tho devices for defeating the right of shoofd
right miiy are as follow : — The property may he sold for a price above
he evaded, jjg yalue, and then something of trifling value may he
received in exchange for it, which would compel tho shvfee
to pay the full price stipulated in tho contract if ho chose
to avail himself of his privilege. Again, if the property is
sold at an excessive price, and the seller receives, port of it,
giving a release of the remainder, this also obliges the
shufee to submit to a considerable loss or to abandon his
claim. In like manner, if the seller transfer bis share
without sale, as by gift or composition, and on a purchase
being alleged, the buyer should admit the fact, but say
that he had forgotten the price, in such a case his word
must be credited when accompanied by his oath ; and if he
should swear, the right of shoofd would be extinguished.
If, however, ho should merely say that ho does not know
the quantity or amount of tho price, that would be no valid
ASSUMPTION OF PBOPEBTY UNDEB SHOOFA. 197
answer, and he must bo required to give one more explicit.
The Sheikh, however, has declared that the shtifee must in
that case be called upon to swear
** Literally, “ that the oath must bo retunicd to the slinfee^' that
is, that he must specify aiul swear to a price, and the purchaser’s
knowledge of it, both of which seem necessary'- to the validity of his
claim. According to tho Imamcea jurisprudence, when a plaintiff,
ill default of evidence, refers the matter to the defendant’s. oath, tho
latter has the option of sw’earing to the negative of the idaintid’s
assertion, or colling upon him to confirm the affirmative by his own
oath (^ShuyayUj p. 477), a course not open to him by the Jhmifeea
code.
198
shoofA.
CHAPTER V.
OF DISPUTES BEIiATITE TO SHOOFA.
In disputes If the purchaser and shufee differ as to the price,
the price and neither of them has evidence, the assertion of the
thopur” credited, for ho is tlio person
chaser and whose possession of the property is disputed, and who is
^^Sin* consequently defendant in the cause. But if one of the
of the tor- parties should bo able to adduce evidence this must
fcned necessarily guide thp decision. The testimony of the
seller, however, it is to bo observed, is inadmissible on the
ns also the part of either. If, again, both the parties should adduce
SfuSby ei'^idenee, that of the purchaser must be preferred, although
him. there is nearly equal ground for giving the preference to that
of the shufee, who is out of possession and therefore the
His cri- plaintiff in the cause.* If the difference as to the price is
between the seller and purchasei’, and only one of them
ferred in has evidence, such evidence, by whichever of them it is
hc*wen produced, must guide the decision. If, on the other hand,
him and evidence is adduced by both parties, the Sheikh has declared
regariing <looided by casting lots. But this is
the price, attended with difficulty, for tho casting of lots is a method of
decision strictly confined to cases of perfect equality on both
sides, which cannot be said to exist in this case, for there
is a general rule with regard to contracts of sale that where
the thing sold is still in existence the word upon oath of
' There was a difference upon this point among the Han\fite
doctors also— Ilunee/a and Moohummud supporting tho ovidonco
of the tltufee, while Ahoo Yoomf was in favour of that of Uie pur-
chaser. — Sen Hamilton's vol. iii. p. 078.
DISPUTES EELATIVE TO SHOOPA.
199
the seller is to be credited, whence it follows that when both
adduce evidence that of the purchaser must bo preferred ; ’
and when the price is thus determined, it rests with the
shufee to make his choice either to take possession at that
price or to relinquish his right altogether.
Second. If one of the partners in joint property should ^
allege that ho has sold his share to a stranger, and the ^know.
stranger denies the purchase, the Sheikh has said, in the y®
Khilaf, that the apparent acknowledgment involved in share, this
the suit of tho seller is suflSciont to sustain the right of
8Ju>nf(i in his partner. But this decision has been ques- though
tioned on the ground that xlunifd is dependent on thOj^^p^^y^
establishment of purchase. It nevertheless appears to bo chaser,
most generally approved, and is supported by the common ^ found*
rule of law, that tho acknowledgment of a possessor is valid thesAv/ee’s
as against himself.
I’hird. If one of two owners in joint property should
claim tho right of shoofd against tho other, by asserting and mutual
priority of purchase, which tho other denies, tho word of
the latter upon oath must bo credited, and it is sufficient nersfound-
if ho merely swear that there is no right of shoofd
against him ; and ho cannot be required to swear that his purchase. .
purchase was not subsequent to that of the claimant. .
If, again, both tho poitners should allege priority of
purchase respectively, and consequently a right of shoofd
over tho share of the other, as in that case they are both
equally claimants, if neither of them can adduce proof,
each must be called upon to sw’ear in refutation of the
other’s priority of purchase, which being done, the property
is established between them ns before. Further, should one
of the paiiners adduce evidence in general terms to prove
merely his purchase, still no decision can be given in his
favour, as in the matter of priority he has no advantage over
the other. If, however, tliere is testimony in favour of one
as to his priority of pm-chase, this must necessarily determine
tho decision ; but if both adduce proof of their purchase in
general terms without assigning any dates, or of the
* See Im. D., p. 09.
200
shoofA.
purchase of both being on the same day, there can he no
preference to either. If, again, the witnesses of each
should testify to his priority of purchase over the other,
some doctors hare said that recourse must bo had to lots
for deciding the case; while others maintain that the
claims of both the parties must drop, and the property
remain in partnership as before.
Continued Fourth. When a claim of shoofd is made by one of the
partners on the ground of a purchase, and the other
alleges that he acquired his share by inheritance, and both
parties offer evidence of their assertion, the Sheikh has
declared that a reference must be had to lots by reason of
the perfect equality on both sides. If, however, the
defendant should plead that the possession of the claimant
is in virtue of a deposit by the owner, and both parties
should offer proof, preference must bo given to that of the
shiifee, or claimant; because deposit does not controvert
the establishment of purchase.” If, on the other hand,
the witnesses of the claimant should merely testify to the
purchase generally, while those of the other party testify
that the depositor, being in possession of the subject of
dispute, made the deposit of. it subsequently to the alleged
purchase, the Sheikh has said that preference must be
given to the proof of deposit, with this further proviso,
that the depositor is to be written to, and that if he
confirm the statement, judgment is to be given in terms
of the proof, and for rejection of the shtifee’s claim ; but if
he should deny the statement, judgment should be given in
terms of the ahufee’s evidence, and consequently in his
favour. If, again, the witnesses of the ahtifee should
testify that the seller sold at a time when he was actually
proprietor, while those for the deposit merely testify to it
in general terms, the mtnesses produced by the ahufee are
to be preferred, and there is no occasion for any reference
to the alleged depositor.
” For, though the property were deposited, it might be subse*
quently purchased from the owner by the trustee.
DISPUTES EELmvE TO snoopA. 201
Fifth. If both the seller and purchaser of a share in Concur-
joint property unite in declaring that the price was usurped, the seller
while the slmfee denies the assertion, his word is to be
credited without any necessity for his oath, unless they no bar to ^
assert his knowledge of the usurpation. * *
^ The price may have been “ an animal, or a piece of cloth, or a
jewel,” {antCy p. 188,) and so have been usurped, in which case
the sale would be invalid, and if so there could be no right of shoofuy
but the concurrence of the seller and purchaser as to that fact is
not proof against the shufee.
BOOK IV.
OF HEBBAT, OR GIFTS.
CHAPTER I.
ISTRODUCTOBY.
lieha, or gift, is a contract by which the property of a Definition,
substance' is transfciTcd immediately and nnconditionally,
without any exchange, and free from any pious or religious
purpose on the part of the donor and it is sometimes
teraied in law nuknlut and dteeuL This contract requires How con-
declaration and acceptance, with seizin or taking posses-
sion.* By declaration is here to he understood every word
that sciTCS to express a transfer of property as above
described, such as “ I have given yon,” or “ I have made
you the proprietor of this.” But the contract is not- valid
except when proceeding from a person who is of full age,
sound understanding, and unrestrained in the use of his
property.'
The donation of a debt, or what rests on the ohliga- Gift of a
tion of another, is not valid to any other than the debtor vaHatTam'
or person by whom it is due, according to the most other thaa
approved doctrine, by reason of the condition already men- ® ’
tioned, that it requires possession to complete it ; whereas, to whom
if made to the debtor himself, it is quite valid, and operates jt is a rc-
lease.
‘ Ayn : Res prnpsens ; Rei substantia, essentia. — (^Freytag.)
* This distinguishes it from mihf,
® Kuhzj inf. of kubuzu, cepit. — {Freytag.)
* According ijoAUmnee, in his Tuhreer, tiie donee must also be of
mature ago and intellect ; but tliis seems inconsistent witli what is
said hereafter of gifts to minors.
204
GIFTS.
as a release of tlio debt ; a release not requiring accept-
ance, according to the most approved opinion.
Gift not No decree can be given for a gift until it is completed
wiSiout* seizin or taking possession. Yet, if the donor should
seizin by ackuonlcdgo the gift and delivery of possession,' judgment
and if ’ i^^Qst be given against him on bis own acknowledgment,
before though the thing given may be still in his hands ; and any
seizin the subsequent denial of it cannot bo received.
gift reverts jf tije donor should die after the conti'act, and before
to nis 6S“ •
tate. possession has been taken of the gift, it falls back into his
inheritance.
Permission Pcimission of tho donor is a condition of valid seizin ;
a raadmon thing given bo taken possession of without his
of valid permission, it is not transferred to tho donee.* But if a
semn. thing bo given which is already in the hands of the donee,
that is sufficient, and tlie donor’s permission to take
possession is not required, nor is it necessary that any
time should elapse to enable the donee to repeat bis seizin,
as some of our doctors have said.
Gilt by a When tho father or grandfather of a little child has
biscbildof jail’ll ^ complete and binding on the donor
contract itself, because seizin by tho guardian is
seizin on his part. But if any other than tho &thcr or
grandfather of the child should make him a gift, tho
t^t. donor’s possession would not be sufficient, whether ho
have power over the child or not and the legal guardian
or the judge must obtain power over the gift in order to
complete the right of the child.
Gift of The gift of mooshda or a share in joint and undivided
vSSd!"** property is lawful, and seizin of it is to bo taken in the
same way as seizin in sale.* And if a thing is given to two
' Jkbaz, causal form of Mx.
* Even, according to tho author of the Tuhreer, though tho donor
were present at the time.
’’ Accordhig to the other sect, possession of a gift to a minor
may be taken by any person in whose family he is living.— i>., p. 630 .
* Tliat is, by mere surrender or vacating by the donor. Accord-
ing to AUamee, in. his Tuhreer, this is sufficient in all cases of gift
where the subject is immoveable ; where it is moveable, actual .
transportation or removal seems to be required.
ISTRODUOTOBY.
205
persons jointly, and they both accept and both take pos-
session, each donee becomes the proprietor of tlio portion
given to him. If, again, one only of them should accept
the gift, and take possession, while the other refuses, the
gift to the acceptor is valid.®
A father may lawfully give a preference to one child A fiitlier
over another in gifts and presents ; but' it is accounted ™orctoonu
abominable in him to do so. child.
After possession has been taken of a gift, it cannot bo Gift to
lawfully retracted when made in favour of parents, accord- tiOT rannot
ing to general agreement, nor even when the douce is any bo revoked;
other relative by consanguinity of the donor, though on this
point there is some difference of opinion. But if the gift to a
bo to a stranger, it may bo retracted at any time, so long may'brre-
as the substance of the thing given is in existence. After voked.
it has perished, there can be no retractation. In like isxception.
manner, a gift cannot be retracted if anything has been
received in exchange for it, though the exchange should
bo of little value. Whether, again, mere use by the donee
has the effect of doing away with the donor’s power of
retractation, is a question to which some lawyers have
answered in the affirmative, whilst others have denied that
effect; and their opinion is the more reasonable and '
approved.
Presents to relatives, and especially to children, are Presenteto
highly proper and becoming. In presents to children, ^
equality should be observed. Further, it is abominable in lativospro-
_ per and
The whole doctrine with regard to mooshdd is opi^osed to that
of the other sect. — I)., p. 515.
The regular forms of retractation of gifts, according to the
author of the Txihreer, are that tlie donor should say, “I have
retracted,” “ I take back iny gift,” or “ demand its restitution,” and
all similar expressions, which sufficiently establish the retractation
without any decree of the judge, for tliis is by no means required for
its confirmation ; whilst, on the other hand, mere re-assumption of
the gift from the donee, without some other proof of revocation on
the part of the donor, does by no means constitute this act in law ;
and should he die without affording any other proof of his intention
to retract the gift, it is still, although found in the donor’s possession,
the lawful property of tlie donee.— From MSS. of the translator of
the first volume of tlie /m. Z>.
206
GIFTS.
a wife to retract a gift made to her husband, and in a
husband to retract a gift made to his wife. Some doctors
have considered a husband and wife in respect to their
mutual gifts on the same footing as kindred by consan-
guinity ; but the first opinion appears to be better supported
by analogy.
" According to the other sect, the marriage relation prevents the
revocation of gifts. — B,, p. 626 .
( 207 )
CHAPTER n.
OF THPi LAWS OP GIFT.
These aro comprclionded in tlie following cases : —
Firnt. If a person should make a gift, put the donee Sal®
in possession, and then sell it to another, tho sale is
invalid if the donee were a relation hy consanguinity ; so
also though ho were a stranger, if ho had given anything the donee
in exchange for tho gift. Hut if tho donee were a stranger, h®® '“ken
and had not given anything in exchange for the gift, some Sot vdid.’
have said that tho sale would he void, as of a thing not tlio
property of the seller, while others maintain that it would
bo valid, because ho has tho power of retractation ; hut tho
first opinion is best suppoiied.* If, however, tho gift
wore invalid, there is no doubt that tho sale would 1)e
good in both views of tho case. And tho eifect would bo tho
same with respect to tho sale by an expectant heir of property
l)elonging to his ancestor, when he behoves the ancestor
to bo alive; for if it should prove that he was actually
dead at the time, the sale is valid. So also in tho case of
a bequest by a person of his slave whom he had eman-
cipated, if it should prove that tho emancipation was in-
valid, the sale would bo good.
Second. If there has been any delay after the contract The trans-
in giving possession of the gift, but possession is at length perty^in a"
given, the transfer of property is to bo decreed as having^ift dates
taken effect from the time of seizin, not from the date of
tho contract. It is not so in the case of a bequest; fortakijiRpos-
there the transfer is to be decreed as having effect from the
See ante, p. 305, note '
208
GIFTS.
death of the testator, if the bequest is accepted by the
legatee, and not from the date of taking possession, though
there should hare been some delay in taking it.
When the Third. If a person should say, “ I gave, but did not put
mto"the* possession,” tho word is with the donor, but tho
gift, but donee may demand his oath if ho insists that possession
lively, hS /"’fts given. So also if a person should say, “ I gave him
Edited *** made him tho proprietor of it,” and then deny the
giving possession; for it is possiblo that he may have
made the first statement, supposing that seizin was not
necessary to make tho donee proprietor of tho gift. «
On rctrae- Fourth. When a person has retracted a gift and finds
th*e " defective, he has no claim to any compensation on
donor is account of the defect. If tho gift has increased, and tho
tocom'iwn- mcmaso is of such a nature as to bo united to the original.
Ration for it belongs to the donor. But if tho increase bo separated
* from tho original, as tho fruit of a tree, or tho child of a
slave, and if it be entirely new, it belongs to tho donee,
while if it were formed, or in existence at the time of tho
gift, it is the proiiorty of tho donor.
Rctracta- Fifth. When a person has made ft gift in general terms
by"iwc^t- condition or obligation on the part of tho donee
anco of any to give any gratuity in return. Still if he should do so, tho
BuWqi^nt donor would thereby be debarred from retracting the gift,
to titc gift, jf again a reciprocal gratuity were actually stipulated for
at the time of tlie contract, the condition would be valid,
whether the article to be given were indefinite or particu-
larly specified, and tho original donor would retain his
power to retract until the stipulated exchange were actually
delivered to him. When tho stipulation is entirely
indefinite as to tho quantity, tho donee may make any
return, however small in value, and should the donor
accept and take possession of the exchange, he is no longer
at liberty to retract his gift. Further, the donee cannot
be compelled to make the stipulated return; nay, be is
absolutely free in the matter, and if tho gift should perish
or suffer any injuryjn such circumstances, he is in nowise
responsible for the loss or injury which has occurred while
tho thing was actually bis property ; although npon this
LAWS OF GIFT.
209
point there is some room for doubt, on account of the
stipulation for an exchange. ^
Sixth, When the gift is of a piece of cloth, and the Case of a
donee has dyed it, this, according to those doctors who think ^oth being
that use by the donee of the subject of the gift debars the
donor from retracting it, has the effect of preyenting the
retractation ; but if we agree with those who say that use
of the gift is no impediment to its retractation though the
donee is a stranger,^ he becomes in the event of such
resumption a partner with the donor for the value of
the dye.
Seventh, Wlien a person has made a gift, being
dangerously ill at the time but afterwards recovers, the ness valid
gift is valid. If, however, ho should die of the disease,
and the heirs refuse their assent to the gift, it is valid only donfir’a
to the extent of a third of his estate, according to the best estate,
traditional authority.
’ The more approved opinion . — AntCt p. 205.
PART II.'
BOOK V.
OF WOOKOOF* AND SUDUKAT, OK iVPPEOPllIATIONS
AND ALMS.
CHAPTER I.
OF WUKF, OR APPROPRIATION.®
Section First.
Introductory.
WuKF is a contract the fruit or effect of which is to tic up Definition,
the original of a thing and to leave its usufruct free. The
only express word by which it can bo constituted is Hpw con-
“ WuJcufto" “ I have appropriated ; ’’ for with regard to
“ Hurmmto," “ I have consecrated,” and “ Suddukto," “ I
have bestow^,” they are not sufficient to constitute ivukf
without accompanying circumstances, as by themselves
they are susceptible of another interpretation besides wxikf.
li, however, they ore used with the design of constituting
wukf, they are obligatory on the conscience of the person
employing them without any circumstances to fix their
meaning. And if ho should actually acknowledge that ho
used them with that design, judgment should ho given
against him in terms of his acknowledgment.® It has been
said, indeed, that if he should say, Ilubbiisto* o inibbtdto”‘
wu^ would be (instituted even without any circumstances
Plural of
* laterally, dettntion.
® That is, when completed by giving possession. .
* Increased dhijugatioi^&om hooht, which has the same meaning
08 wuk/, and is psed instead of it by the followers of Malik.
. * Prdm nthfsl, a way. ,
212
APPHOPIUATIONS AND ALMfc*.
to point their moaning, because He on whom be peace has
said, “ Ilnhhis id iml o siihlAl id thoomrnt *’ (“ Tie up the
original and give ^vay to the fruit”). Others, however,
have maintained that there would be no unilxf in the case
without corroborative circumstances, as the -words by them-
selves would not commonly be so understood ; and this is
the more approved opinion.
Notobliga- The contract is not rendered obligatory except by
poMCMion possession ; ® but wlien so completed it cannot be
is given, revoked if made in health, and even when made in death
When illness it is equally valid if allowed by the heirs, tliough,
death ill- disallowed by them, it is valid only to a third of the
ness valid dcccascd’s estate, in the same way as a gift or a muliahaV
sale. Some of our doctors insist that it should bo
third of sustained out of the whole of the estate ; but the first
pro^rty.* opinion is the more approved. If one in death illness
should make a ivulxf^ a gift, a vwludmt sale, and also
emancipate a slave, .and neither of the acts is allowed by
his heirs, all arc valid if they can bo carried into effect out
of a third of his estate. Otherwise, they are to be pre-
ferred according to priority of date, and eflect given to each
in order until the third of the estate is exhausted, after
which any that remain are void. The same rule is to be
observed w'hen a man has made bequests in excess of a third
of his property. If the priority cannot be determined, some
, of our doctors maintain that the third should be rateably
divided among the different objects ; but the better opinion
seems to be that the question should be determined by lot.
The wukf If a man should appropriate a sheep, the wool and
indudes^ milk existing at the time arc included in the wukf, unless
the exist- specially excepted, from a regard to custom, and as would
nnd^k animal were sold.
* Ihhaz, See ante, p. 204. Not required by the Hanifites.
^ Where the price is inadequate, there is said to be muhahat in
the transaction.
APPROPRIATION.
213
Skction Second.
Condition.
Thcso aro of four kinds.
First, Conditions that relate to the moiukoof,^ or thing Conditions
appropriated, which aro also of four kinds. It must bo a tothoA^^g
substance, the property of the appropriator, capable of being appropri-
used without being consumed, and also capable of being
delivered. Hence, the iv ukf of anything which is not in ayny
or distinctly specified, as deyn ot indeterminate things, is not
valid.® So also if one should say, “ I have appropriated a
horse, or a mansion,” without mentioning some one in parti-
cular, the wukf would be invalid. But the appropriation of
akar, or lands and houses, of clothes, furniture, lawful instru-
ments,^® and generally of everything from the use of which
any benefit can be lawfully derived with the preservation of
the thing itself, is quite valid." So also the witkf of a trained
dog or of a cat, from the possibility of employing them for
some useful purpose. But the wukf of a bog is not valid,
because it cannot lawfully be the property of a Mooslimy
nor of an absconded slave, because he cannot be delivered.
Whether, again, dccnars and dirhems can be validly
appropriated, is a question which some of^our doctors have
answered in the negative ; and their opinion is the most
manifest, or best supported by traditional authority, because
they are things from which no benefit can bo derived except
by spending them. Others, however, insist. that the appro-
priation of them is valid, because some advantage from
them may easily bo imagined, with preservation of the
originals.^* If one should appropriate a thing which is
* Past participle of wukf,
® For the meaning of deyuy as distinguished from ayn^ see Im, />.,
p. 00, note f .
For such as aro unlawful see Im. p.y p. S.
" According to the Hanilites, no moveables, unless attached tcb*^
lands or houses, except beasts of burden, weapons of war, and
things which it is customary to appropriate, can be made the subject
of wukf. p. 501.
Money usually falls under the head of deyn or indeterminate
things, and must, tliercfore, be made ayny by actual production or
specification, before it can in any view be made the suliject of wukf.
214
APFBOPBIATIOKS AND ALMS.
not his own, the wnlef would not bo valid. But if tho real
owner should sanction the appropriation, that would give
it validity according to some of our doctors, the sanction
being tantamount, in their opinion, to a new appropriation.
And the wuhf of a mooshda, or undivided share in a thing,
is valid, and possession of it is to be taken in the same
way as in a case of sale.
Conditions Second. Conditions that relate to tho wakif,^* or appro-
to*hcn"*** required that ho bo of full age,
propriator. souhd understanding, and unrestrained in tho use of his
property. With regard to one who has attained to ten
years only, there is room for doubt, as there is a report
which favours the legality of charity by such an one. But
tho preferable opinion seems to be that appropriation by
him is forbidden, because the inhibition under which ho
is placed by reason of bis youth is not removed until ho
has attained to puberty and discretion.
He may It is lawful for an appropriator to retain the snper-
i muo ^tho iDteudenco of tlio wukf to himself, or to appoint another
siipurintcn- to the office. If he has not appointed any superintendent,
himwll or belongs to the person on whom tho settlement
appoint has been made,” because the right of property is vested
Qiiothcr* • T_ • *
in him.
Conditions Third. Conditions that relate to the mowkoof alehi, or
to dic***^* person on whom tho settlement is made. And in him
persons iur three condition^ are required. He must be in existence,
SSstthe®”^ capable of owning property;. ho must be distinctly
appropria- indicated ; and ho must bo one on whom it is not unlawful
to make a tcukf. Hence, if one should make a settlement
beginning with a person not in existence, as for instance,
one to be born, or a foetus not yet separated from its
mother, tho wukf would not be valid. But if it were in
favour of one not in existence, in succession to a person
’Actually in being, it would be quite good, Where, again.
Prcflent participle of wukf.
When the nppropriation is for the benefit of personsp I use the
word gettlement, as in the Digatt though the originol word is the
same.
APFBOPBUTION.
215
a commencement is made with one who is not in existence,
followed by a person in being, some of our doctors main-
tain that the wukf is not valid, while others insist that it
should be sustained so far as concerns the person in being;
but the first opinion is the more approved. So also where
the pOrson first in order is one who cannot be the owner of
property, and he is followed by one who can; but here
there is some room for doubt, though the better opinion
seems still to be that which is against the wukf. A settle-
ment in favour of a slave is not valid, and the thing appro-
priated cannot be made use of by his master, which would
be contrary to the intention of the appropriator.
A ioukf for or works of general utility, such
as bridges and musjids, or places of worship, is quite public "
valid ; for such a tottkf is, in truth, a settlement on all
Mussulmans, though some only can participate in their
advantages.
A Mooslim cannot make a settlement on an
enemy, though his blood relation ; but he may make it on ,^Um in
a zimme, or infidel subject, even though a stranger, or in
no way related to him. Yet an appropriation by him for enemy or
Jewish synagogues or Cliristian churches is not valid. So,
also, if ho should make an appropriation in favour of not valid.’
fornicators, or highway ijibbers, or drinkers of wine, or
for the copying of what are now called the Towreet and
Injeel (the Law and Gospels), for they are altered or
perverted versions. But if the appropriation were by an
infidel it would bo lawful.
If a MoosUm should make an appropriation for
poor, it is to bo applied for the benefit of poor Mooslima the poor,
only, to the exclusion of all others : and a similar appro-
priation by an infidel is to be applied in like manner to the
poor of his own persuasion.
An appropriation in favour of Mooslims is to be applie^VoM/iiM
for the benefit of all those who pray towards the Kiblah.^*
But one in fitvour of the moomineen, or true beUevors, is
“ PI. of wmlvhut, commodniu, res convoniens.-— (P'wjitflj.)
“ Mecca.
216
APPBOPBIATIONS AND ALMS.
to be applied only for the benefit of the followers of the
Twelve Imams.*’' Some, however, maintain that it is for all
those who abstain from grave offences against the law ; but
the first opinion is the more approved. If the appropria*
tion be for Slieealis, it is to be applied to Imameeans and
Jaroodiana, to the exclusion of all other Zeydeeans. In
like manner, whenever the mowkoqf akhi is described by
a particular relationship, all those who come within it aro
held to be included in the benefits of the toukf; so that if
th« toukf ia on Imameeans, it is for all the followers of the
Twelve Imams. In like manner, when it is for Zeydeeans,
all those who assert the Imamship of Zeyd, the son of Aly,
are included. So, likewise, when the connection is rela-
tionship to a particular ancestor, all those lineally descended
from him by their fathers are included. As, ibr instance,
Hashemees, who comprehend all those descended from
JIashem, through Aboo Tal'tb, Harith, Abbas, and Aboo
I/uhnb ; or Talibees, who comprehend the descendants of
Aboo Talib, on whom be peace, both males and females
participating if connected with him on the side of their
fathers, from a regard to custom ; though upon this point
there is some difference of opinion.
Who aro OQO should make an appropriation for neighbours,”
iicighboan a reference must be mode to custom for determining who
are to be included.” Some say, however, that any one
whose boose is within forty cubits is a neighbour, and this
opinion is good, or well supported ; while others maintain
that the meaning of the term extends to all the occupants
,, * of forty houses on either side ; but this opinion is now
> abandoned.
Wukffot If one should make an appropriation for a musluhut, or
object of general utility, which has ceaeed to be used,
longer it is to be applied to any good and pious purposes.” And
”” jj^^if it is for such purposes generally, it is to be expended on
gcjod pur- ' , " , -
poses. Athna-aaheriat : literally, twelve-cans.
Jeeran.
According ^to the Hanifites, all who worsliip in the same
p. 679.
“ Woojooh-ool-hirr.
appbopbiation.
217
the poor and indigent, and in any other way by which an
approach is made to Almighty God.
If one should make an appropriation for the Bunee Wuk/fm
T'umem, it would ho valid, and should he applied to any
of them who can he found. Some say, however, that such valid,
an appropriation is not valid, because the persons referred
to are unknown; but the first opinion is mhre in con-
formity with our way or doctrine. A mikf in favour of a
z'mmee or infidel subject is lawful, because it is a transfer
of property, and is like a permission to take the usufruct.
Some say, however, that it is not valid, because it implies
a pious intention, and is good only when made for the
benefit of a parent ; while others maintain that it is good
when for the benefit of any relative. But the first opinion
(which sustains it generally) is tlie most approved. So
also a settlement in favour of an apostate is valid, while
there is some doubt as to one in favour of an alien enemy,
the more approved opinion being entirely against it.
If a man should make an appropriation without men- IV^/not
tioning its objects, the appropriation would he void. So th^'o^ecr
also where the objects are not distinctly specified, as if he not pro-
should say, “ For one of these two,” or “ For one of the
two Mmhhiih,"^ or “two Fureeks," the whole would ■
be void.
If one should make a settlement on his children, and Settlement
his brethren or his kindred, so general an expression
requires the participation of males and females, and of the nnd kin-
near and the remote, with equality of partition among piehends *
them, unless some order or detail is made a condition, er kH equally,
some one is specially indicated. If the settlement were on .
maternal and paternal uncles, they would share equally
together. But if it were for the nearest of mittukind to
him, his parents and children, how low soever, should first
be taken, and so long as one of them survives none oth^
of his relatives con be allowed to participate. After those
above mentioned, when they all fail, the grandparents and
brethren with their children, how low soever, would be
Sepidchres of Aly and Hoossein.
218
APPBO?BUTIOKS AKD ALMS.
entitled ; and after them paternal and maternal nncles in
r the order of inheritance ; all (in each class) participating
equally, unless some are specially mentioned in detail.
Conditions Fourth. Conditions that relate to the tvukf itself, which
to thewvA/ number. 1st, it must be perpetual ; 2nd, absolute
which Bte and unconditional ; 8rd, possession must be given of the
mowkoof ot thing appropriated; and, 4th, it must be
entirely taken out of the wakif or appropriator himself.
Illnstra- So that, if tho appropriation is restricted to a particular
tiomof the gp made dependent on some quality of future occur-
rence, it is void. So also when mode in favour of persons
who will probably fail, as, for instance, if one should make
a settlement on Zeyd, with a restriction to him8elf,or extend
it only to generations that will probably fail, or say gene-
rally, “ for his successors,” without mentioning what is to
be done after they fail, — in all these cases it is maintained
by some that the wukf would be entirely void ; but others
insist that due coarse should be given to the purposes
actually named, which seems more reasonable. Then,
when they do fail, the property will revert to the heirs of
tho wakif or appropriator ; but some of our doctors main-
tain that it reverts to those of the mowkoof alehi. Tho
first opinion, however, is best supported by traditional
of the authority. If one should say, “ I have appropriated ” when
> the beginning of the month has come, or if Zeyd shall
nf arrive, the appropriation would not be valid. Seizin is a
third ; condition of the validity of wukf. So that, if one should
make an appropriation, and die without giving possession,
the subject of it would be part of his inheritance. But if
it were in favour of his young children, his own possession
would be possession on their behalf. So also in the case of
a grandfather on the father’s side. But with regard to a
wusee or executor, there is some room for doubt, though the
'Hinlidity of the settlement in such a case is better sup-
ported by traditional authority.
of If a person should make a settlement on himself, it
Axirth. would not be vdid. So also if it were first on himself and
then upon another, though sonie maintain that it would
he void only with respect to himself,^ and valid with regard
APFBOPBIATION.
219
to the other ; the first opinion, however, is the more approved.
In like manner, if the settlement were on another, with a
condition for the payment of the wahifs debts or current
expenses, it would not bo valid. But if one should make an
appropriation for the poor and should himself subsequently ^
become poor, or for lawyers, and himself become a lawyer,
there is no objection to his participating in its benefits.
If one should make an appropriation with a condition Cond itions
that the property is to revert to him in case of need the the wukf.
condition would bo valid, but the Muhf void, and the
property would remain in the condition of a Jioobs^ until
the occasion should arise, while if ho should die it would
go to his heirs. And if ho made it a eondition that ho
shall have the power of excluding whomsoever he may
please, that would invalidate the wukf. But if the con-
dition were that he may add to those in whose favour the
appropriation has been made some yet to be bom, the con-
dition would be lawful, whether the appropriation were for
others or his own children. If, again, the condition were
that ho may make an entire transfer from those on whom
the settlement has been made to others subsequently to
come into being, that would not be lawful, and the tvitkf
would bo void. Some have said that when one has made a
settlement on his young children, ho may lawfully make
others to participatowith them mthout reserving any express
power to that effect ; but this opinion is not to bo relied
upon.
The seizin which is required is that of the first of the
motekoof (Uehi, or persons for whom an appropriation is o^er suffi-
made ; and all regard to possession ceases in the subsequent J
steps. In the case of an appropriation for the poor, or for particalar
lawyers, a kuyyim^ or superintendent must be appointed to
take possession, while in the case of an appropriation for it is for the
a nmluhut, or useful purpose, the creation of the ivukf ^
sufficient, the condition of acceptance being entirely dispensed muRt be
with, and as to possession that of the Nazir or superin-
tendent is sufficient. If one should appropriate a mmjid
" See jKMt, p. 220. " See D., p. 687, note '.
220
APfBOPBIATIONS AND ALMS.
or place of worsliip, it is valid though only one ^person
should pray in it. So also if the appropriation is of a
cemetery, it becomes a wukf by the interment in it of a
single corpse. But though people should pray in a
mmjid, or bury in a cemetery, without the formal words of
wuhf being pronounced, neither would pass out of the
property of the original owner. So, also, the result would
be the same, though the proper words were used, if
possession were not also given of the subject of the wvkf.
• •
Section Third.
Appendaijes.
Tie right First. The u'ukj or subject of appropriation is transferred
lnthewK*yso as to become the property of the viowkoof alchi, for ho
fen^to ^ advantage or benefits to bo derived from
the mom- the prohibition to sell docs not negative his right of
Itoofalehi. property in the substance, any more than it has that effect
in the case of an oom-i-wiilud or mother of a child ; and
indeed, the sale of the wvkf is sometimes in a manner
valid, as will bo seen hereafter. If then a person should
appropriate his shore in a slave, and subsequently emanci-
pate him, the emancipation would not be valid, becadso the
right of property in the slave has passed out of him ; but
neither would it be valid if the mowkoof alehi should
emancipate the slave, because of the right which future
generations have in the slave.
How a Second. When a person has made an appropriation “In
of way of God,” it is applied to whatever is productive of
God to reward in a future state, such as religious warfare, the
be applied, gjggjgj lesser pilgrimages, and the erection q| Mu^Uls
or places of worship, and bridges. So, also, if he^pibnld say
“ In the way of God, and way of reward, and way of good,”
the purposes are all considered as one or the same, and
t&ere is no necessity for dividing the proceeds of the toulf
into three different parts.
In a muhf Third. When a man has made a settlement** “ on the
oncliil- ,
See ante, p. 214, note
APPBOPEIATION.
221
(Shildren of his children,” the children of sons and dren’schil-
daughtcrs participate, both males and females, without any **’
superiority of one over another. But if he should say sons and
“ those among them who are lineally related®* to me,” the
children of daughters would not bo included. And if the equally,
settlement wore “on his children,” it should bo applied
only to the children of his loins, tlxo children of his children
being excluded. Some maintain that they would all
participate together ; but the first opinion is more agreeable
to traditional authority, for by the word child, the child of
a child would not generally be understood.'” And if ho
should say “ on my children and children of my children,”
it would bo confined to two generations. While if ho said
“ on ray children, and when they fail, and the children of
ray children, then to the poor,” the tevhf wonld be for his
children, and though on their failure some of our doctors
arc of opinion that the proceeds should bo expended on the
children of his children, and only when they fail on tho
poor, yet others maintain that tho proceeds are not to bo
expended on his children’s children, for they are not
comprehended in tho imkf, their failure being only a
condition of tho application to the poor ; and this opinion
is more likely to be right as being more conformable to
tho grammatical construction of the words.
Fourth. When a person has made a ivukf of a vivsjid. The grant
and it has fallen to ruins, or tho village or viuhuUah
(district) in which it is situated has gone to decay, tho cease to bo
property does not revert to tho appropriator ; nor does the jjjg
space of ground on which it was built cease to be tcukf, nor
can it bo sold. to decay.
If the mansion belonging to a should fall Same rule
into ruins the space would not cease to bo w^lkf nor would
its sale be lawful. But if dissensions should arise among slon.
the persons for whom it was appropriated, insomuch as^o^®®!***®”’
give room for apprehension that it will bo destroyed, its sale
" An inflection of tho word mmh is here ^ployed, on which
tho distinction depends.
* See D^, p. 670.
222
APl'BOPRIATIONS AND ALMS.
would be lawful. And even tbongh there should be no
such differences, nor room for such apprehensions, but the
sale would be more for the advantage of the parties inter-
ested, some are of opinion that the sale would be lawful,
but it would rather seem that it ought to bo forbidden.
And if palm-trees aro rooted out of appropriated ground,
- the same persons would say that it may be sold, on the plea
that no benefit can otherwise be derived from it ; but others
arc of opinion that it cannot lawfully bo sold in such
circumstances, from the possibility of taming it to some use
by letting it on hire; and this opinion seems the more
reasonable.
Query Sixth. When the first generation has granted a lease
thc*^of ® certain term, and all die in the midst of
a tray is the term, then if wo can say generally that all leases aro
cancelled by death, nothing farther need be said in the
the leosecs. matter ; if we cannot go so far as that generally,*' then
it may be asked whether it has that effect in this particular
case, and there is room for doubt as to the proper answer
to be given to the question. But it is more agreeable to
traditional authority to say that it is cancelled, for we have
already explained that this part of the term does not really
belong to the lessors. The second generation would
therefore have an option either to cancel the remainder of
thb lease, or to grant a new lease, leaving the tenant to have
iecourse to the estates of the first generation for so much
of the term as belongs to the second.
In a wuk/ Seventh. When a man has made a wukf for the benefit
^^ose it is to be applied to the poor of the town who
present in are present. In like manner when a wtt^isfor the descond-
ue to'te <uit8 of Aly the income is to be similarly applied tQ those of
sto^ them who are present. So also, when it is for the children
or descendants of an ancestor who are scattered in different
'‘places, the income is to be applied to those extant, and there
*' There are different opinions on fbo subject, some saying that
it is cancelled by the death of the lessor, some by that of the lessee,
and others that it* is not cancelled by the death of either, ndiioh
last is the opinion of the modems, and most approved.—
p. 220.
APPIlOPllUTION.
228
is no necessity for following into difiScult places those who
are not present.
It is not lawful for the mowkoof alehi of a female slave Not lawful
to have connection with her, for she is not his sole property,
but if he should get her with child the child ^vould be free alehi of a
without any liability on his part for its value, as a person to
cannot bo creditor to himself. With regard to the mother have con-
some of our doctors maintain that she would become an
oom-i-wuludy and be therefore entitled to emancipation on
the death of the child’s father, his estate being liable for
her value to the person next in succession. But this
opinion is open to doubt. It is quite lawful to give a female
slave who is the subject of an appropriation in marriage, and
her dower will belong to the mowkoof alehi, for this is an
advantage arising from the tvukf, in the same way as the rent
of a mansion. He is in like manner entitled to her children,
for they are her increase, whether they be the fruit of marriage
with a slave or of illicit intercourse. Where, however, they
have been begotten by a free man under a valid marriage
they are free, unless there was a stipulation in the contract
that they should be slaves. And though begotten onlyunder
a semblance of legality they are still free, but in that case
the father is liable for their value to the mowkoof alehi. If
the wakif or appropriator should have connection with the
slave whom ho has appropriated the consequences would be
the same as if he were a stranger.
224
“APPROPKUTIONS ASD ALMS.
CHAPTER II.
OF SXIDUKAH, OR ALMS.
Requires Tins is a contract which requires declaration and accopt-
j^*®^p"anco, and also delivery of possession.' And if the donee
anro and should take possession without the assent of the donor,
there would be no transfer of property to him. Among
its conditions is an intention on the part of the donor of
Cannot be an approach to Almighty God. And after possession has
revoked, given it is not lawful to retract the gift, according to
the most valid doctrine, for the hire or object in view has
been attained, and the gift is like one for which an
exchange has been made.
Cannot be When the aiidukah is an incumbent duty, it is not
ondomnd- lawful to bestow it on the descendants of Hashem, unless
mts^of it is a Haahetny stidukah, or when it is any other, except in
a case of urgent necessity. But when the atulukah is
voluntary, there is no objection to bestowing it upon
them.
Miscellaneous Cases.
revoke*** First. It is not lawful to revoke a sudukah after posses-
thongh sion has been given of it, whether an exchange has been
received or not, and whether the person on whom it has
exchang^ been bestowed be or be not a blood relation, according to
^nger. the most valid doctrine.
May be Second. It is lawful to bestow charity on a zimmee or
iQgdg] snbject,.thongh an entire stranger to the donor, by
Zmmte. — — — — — — ■ —
■ Ihhaz. See ante, p. 204.
ALMS.
225
reason of a saying of bis, on whom bo peace, and of tbe
sacrod text, “ God bas not given any prohibition against
those who do not contend with you in religion.”
Third. It is better to give one’s charity in secret than Should bo
in public, unless to obviate the suspicion of avarice, when
it is allowable to do so openly.
PART II.
226
APHIOPRIATION AND ALMS.
CHAPTER III.»
OF SOOKNA AND HOODS.*
Jhis is a contract which requires declaration and accept-
tion and SDCC, with seizin or taking possession ; and its object or
the advantage to bo derived from it is the empowering a
seizin. person to receive the profit or usufruct of a thing, with a
reservation of the owner’s right of property in it. It is
Different knowm by different names, according to the difference of
connection. Thus, if connected with the oomr or life of the
gi-antee, it is called oomru, if with isAvot* or residence, it
is called soohm, and if with a term, it is called roohha.
Words bjr The words of constitution arc, “I have bestowed on
cOTstl** ' i^>*knntokii, atimurtoku, arknhtokii, or the like,)
tuted. "this mansion, or this land, or this dwelling, for thy
life or my life, or for a fixed period;” and the contract
It is ren- is rendered binding or obligatory on the donor by seizin
OP tlie part of the donee. Some of our doctors main-
seizio, tain that it is not rendered obligatory, while others
maintain that it is so only when there is an intention
on the part of the donor of an approach to God. But the
first opinion is the most common or generally received.
If one should say, The residence of this mansion is to
thee while thou survivest or livest,” the contract would be
lawful, and after the death of the person so addressed, the
mansion would revert to the speaker, according to the
most reasonable and approved opinion. While, if he
should say, “ When you die it will revert to me,” the
^teversion would take place on that event without any
question. If he should say, ** I have given this mansion
> This is tlic^subjcct of a separate book in the original.
’ Betention ; but also devotion to a particular purpose.
’ Active or causal form of suhunu, “ he inhabited."
SOOKNA AND HOOKS.
227
to tlieo for life, and to thy successor,” it would be only an
oomra, or for his own life, and there would be no transfer
to the life holder, according to the most approved opinion ;
just as if ho had not said “ to thy successor.” When a and can-
term is specified for the residence, the contract becomes yoked
binding by possession, and cannot bo lawfully revoked
until after expiration of the time. So also, if the residence
is to be for the life of the proprietor, the contract cannot
bo revoked, tliough the life tenant * should die, and what
was his is transferred to his heir till the death of the
proprietor. Hut if it were for the life of the tenant, and
he should die, there would be no transfer to his heir, and
the house would revert to the proprietor. If the period is
loft in general terms without any exact definition, the pro-
prietor may revoke whenever ho pleases.
Of everything of which the wiikf is valid the uhnar'’ or Kvery-
granting for life is valid also, such as a mansion, a slave,
funiituro, &c. ; and the grant is not invalidated by a sale «>ukf is
of the thing, for the purchaser must fulfil to the life tenant be grrated
whatever was conditioned on his behalf. Wlien the resi- I'fc.
donee is left in general terns, it is restricted to the grantee Grantee of
himself, his family, and children ; and it is not lawful for ^noUct
him to allow any others to occupy the house, unless there
is a stipulation or condition that he may do so. Nor himself
is it lawful for him to let the house to hire, as it is not
latvful for him to allow another to reside in it without in it.
permission of the mooHldn " or granter.
When a man has devoted’ his house “in of
God,” or his slave for the service of a house, or of a be devoted
mtisjid, tho act is lawful ; gnd he cannot lawfully make
alteration, so long as the thing lasts. But if ho should other pur-
devote the house or slave to a person without specifying a
time, and the habia or devoter should die, the house or slave
would bo part of his heritage. And so also if a time were*
specified and it should expire, they would be heritage, and
belong to the heirs of the habm or devoter. ,
■' Arab, moodmur. *
* Infinitive, of which tho preceding is the past participle.
* Active participle of Iskan, ’ Huhtuu, irom hoobs.
BOOK VI.
OF WILLS.'
CHAPTER 1.
INTUODUCTORY.
To bequeath is tcf coufer a right to tho substance or the Definition
usufruct of a thing after death ; and it requires declaration
and acce 2 )tance. By declaration is to be understood any
word demonstrative of such an intention, as if a person
should say, “ Give such an one after my death,” or, “ This
is for such an ono after my death,” or, “I have bequeathed
it to him.” And by these or the like expressions a transfer
is effected to the legatee on tho testator’s death and the
legatee’s acce])tance. It is not effected by the death alone
without acceptance, according to the most authentic Accept-
doctrine. If tho legatee should accept before the death nc-
of the testator, the acceptance is lawful or discretionary ; cossary.
but if interposed after his death, it is established or con-
clusive, even though it should bo delayed for some time
after tho occurrenco of that event, ijrovided that the legacy
has not been rejected. And though a legacy should be
rejected daring the lifetime of the testator, it may still bo
accepted after his death, as such a rejection has no effect
in law. But if rejected after his death, without having
been accepted, tho legacy is cancelled. So also, even*
though possession has been actually taken, provided there
has been no acceptance. Where, again, there has been
> ,
* Wmaya, plural of wusiyyut, a will or bequest, or the act of
bequeathing. — See p. 013, note.*
230
WILLS.
May bo
partial.
In the
event of
legatee’s
death, his
heirs may
accept.
Bequest
for sinful
purposes
not valid.
no possession, but the legacy is rejected after death and
acceptance, it is cancelled, according to some of om*
lawyers, while others maintain that it is not ; and this
opinion is more approved. If, however, there has been
both acceptance and possession, and tlie legacy is subse-
quently rejected, there is no doubt that the rejection is
ineffectual, and the legacy is not cancelled according to
general agreement, because the right of property has then
become firmly established in the legatee.
If a legatee should reject part of a bequest and accept
the remainder, such partial acceirtancc would be valid, and
his right established to that extent.
If a legatee should die before acceptance, his heirs
come into his place, and may accept the bequest. Hence,
if a person being ^wssessed of a female slave who is
married and pregnant by her husband, should bequeath
both the slave and the foitus in her womb to the husband,
and he should die without accepting the legacy, the right
of acceptance would descend to his heir ; and if the heir
should accept, he would become the proprietor of the child,
provided that he is one who can validly become its pro-
prietor ; ‘ for the child has not been emancipated as against
the original legatee (his father), who could not acquire
a right of property in him after death ; nor is ho. heir to
his father, being a slave, unless he is so nearly related
to the heir as to entitle him to emancipation against the
hcii', in which case they would be heirs together — the
child inheriting by reason of his emancipation before
paiiition.
A bequest for sinful purposes is not valid ; thus, if a
person should make a bequest of property for the building
of Jewish synagogues or Christian churches, or for trans-
cribing what are now termed the Tmcreet and Injeel (the
* When a man or woman becomes tho owner of a parent or
ancestor how high soever, or child or descendant how low soever,
the slave is emancipated on tho instant ; and the effect is the same
when a nan becomes tho owner of any blood relation within the
prohibited degrees, tliough not so when a woman becomes the owner
of such a relation.— ^Auraya, p. 350.
INTRODUCTORY.
231
Law and Gospels), or aiding a tyrant or oppressor, the legacy
would be void.
A bequest is a contract discretionary and reversible on A bequest
the part of the testator so long as he lives, whether it bo at
of property or a nomination of executor ; ® and the revo- any time
cation is established in law either by express language or tStor!^
by any act which ignores or contradicts the legacy. Thus,
if the testator should sell the subject of bequest, or by
another will direct it to be sold, or should bestow it in
gift, putting the donee in possession of it, or should
pledge it, every such act would be a revocation of the
first bequest. In like manner, if he should make such
a use of it that it could no longer be called by the same
name ; as, for instance, if he had made a bequest of grain,
and should afterwards grind it into flour or meal, or a
bequest of flour or meal, and should then convert it into
leaven or broad, this would bo a revocation of the bequest.
Further, if a person should bequeath a quantity of oil, and
afterwards mix it with some of a better quality, or of grain,
and then mix it with sotne of another species, so as to
remove the possibility of distinguishing and separating one
from the other, that likewise Avould be equivalent to a
retractation of the bequest. Whereas, if he should make
a bequest of bread, and Hubseqiicntly break it into crumbs,
there would be no revocation of the legacy.
IVilayut, lit^amlly, ponev or mithority.
232
WILLS.
CHAPTER n.
OF THE MOOBEE OR TESTATOR.
Mast be PERFECT intellect and freedom in a testator arc iudis*
pensably requisite to tlie validity of a bequest; and the
mil of a madman or a youth under ten years of ago is
not valid. When he has attained to that age all proper
bequests by him in favour of his relatives and others are
lawful according to the most common and approved doctrine
— if ho is capable of discernment.* Some have maintained
that such Inquests are valid though he should bo no more
than eight years of age, but the tradition in favour of this
opinion is uncommon and not well authenticated.
Will by tt If a person should wound himself mortally and then
whMviiid ® bequest would not be valid ; whereas if he
should first make the will and then commit suicide, there
would be no objection to the validity of the bequest.
None but n A testamentaiy appointment of a guardian to children
is invalid, except by their father or paternal grandfather;
father can and a mother can neither be herself the guardian of her
gS'ian children, nor can she make a testamentary appointment of
to a child, guardians to them. Should she, however, bequeath any
property to them, and appoint an executor for its manage-
ment, his intromissions to the extent of a third of the
estate she may have left, as well as for the payment of her
' d^bts, are quite valid, but he has no authority over the
children.
' According to the other sect, a bequest by a person under
puberty is not lawful.— ii., p. 017.
( 233 )
CHAPTEK in.
OP THK MOOSA'BIHI, Oil THING BEQUEATHED.
Section First.
What may he Bequeathed.
A bequest may bo either of tlie substance or the usufruct A bequest
of a thing ; but with regard to both it is indispensable that
they are such as can lawfully bo possessed or enjoyed, that can be
Hence the bequest pf wine, or a hog, or of a noisy or possess^ ;
common dog, or of anything from which no benefit can bo
derived, is illegal and invalid.^ Further, legacies whether andcan-
of substance or of usufruct are restricted to one third of the a^tbird of
testator’s estate : and if the whole of his bequests should the tes-
^ tutor’s
exceed that amount they are void as to the excess, unless estate ;
allowed by the heir. When there is a plurality of heirs,
and one or more of them allows the excess, it is valid to unless
the extent of his share in it. The allowance of an heir is
effective when conceded after the testator’s death. Whether heirs,
it is equally valid before his death is a question on which
there are two opinions, the more common and apjiroved of
which is in favour of its being binding on the heir.®
When the consent is interposed after the testator’s death,
it is a ratification of his act, and not a gift de novo fr^ •
the heir ; consequently it does not require possession by
the legatee to complete its validity.
* All traffic in these is illegal and prohibitdfi. — Fm. D., pp. 2
and il.
® The other sect differs on tliis point. — D,, p. 015.
284
WILLS.
Testator’s
directions
must be
strictly
followed.
The third
which a
person
may law-
fully be-
queath is a
third of
what he
may be
possessed
of at his
death.
It is incumbent on the legatee to obey implicitly the
directions of his testator in respect of the legacy if they
are not contrary to law.
The third of a testator’s property, and consequently
the extent to which he may lawfully bequeath out of it, is
determined by its state at the time of his death, and not
by its state at the time of making his will. So that if a
person who w’as in good circumstances at the time of
making his will should be indigent at the time of his
death, no regard is to be paid to his previous wealth in
determining the amount of his valid bequests. In like
manner if he were poor at the time of making his will, and
has become opulent at the time of his death, it is his
latter condition and not the former that must determine
the legal amount of his legacies.
If the If a man after making his will is murdered or wounded,
legacies have effect over a third of what ho has left,
or^fine of blood, and the imh or com-
death/falla pensation for the wound ; both of which form a part of the
estate^*' testator’s estate.
Testator ^ person should bequeath the whole or a part of his
may direct property to be employed by the legatee in jnoozarubut,^ on
of his pro- terms of an equal division of profits between him and
perty to be hig hcirs, the bequest is valid. Some of our doctors have
in ino(4 restricted this kind of bequest to a third of tbo testator’s
zanbut. property ; but the first doctrine is supported by positive
tradition.
BeqneRts Wlieu a person has bequeathed property for the per-
formance of certain duties, some of which were incumbent
ance of on the testator, and others only discretionary, they are all
to be carried into effect if a third of his estate be sufficient
enmbent for the purpose. If the third should not suffice, and the
heirs refuse their consent, those duties that were*incum-
tionai}'.*' hput on the testator must first be discharged out of the
general mass of his estate, and then the others out of a
third of what remains, beginning with the first mentioned
by the testator,^ and so on in order. If none of the duties
’ See ante, p. IBl, note.*
THING BEQUEATHED.
236
are of the incumbent description, but all discretionary,
they can take effect only to the extent of a third of the
estate, and are to be discharged beginning with the first
mentioned by the testator, and so on in order until the
third is exhausted.
If a person should bequeath a third of his estate to one in bequests
legatee, a fourth to another, and a sixth to another, and
the heirs should refuse to confirm his bequests, a third of or of the
the estate is to bo given to the first legatee, and the other
legacies are void."* But if he should bequeath a third of several
his estate to one person, and then a third, or the same preference
portion, to another, this would be a revocation of the liow clcter-
legacy to the first in favour of the scond ; ''' and should a
doubt arise as to the person first mentioned, it must be
determined by drawing lots.
If a person should direct by his will the emancipation General
of his slaves, the bequest would include not only those cmancfpaf
who are his exclusive property, but also his share in those tion to
of whom he may be joint owner with others ; and such
share is emancipated accordingly. Some of our doctors those of
are further of opinion that the shares of his copartners in testa™ r is
the slaves are also to he valued as against him if a third part
of his estate will bear it, and the slaves are to bo totally
emancipated. Otherwise, that is, if the thirdjwill not
suffice for their complete emancipation, they must be
partially emancipated to the full extent of the third. A
tradition is quoted in favour of this opinion, but it is
weak or of questionable authenticity.
If a person bequeaths one article to two persons, and
the value of the article exceeds a third of his estate, while ^
the heirs refuse their assent to the excess, so much of the specific
,1 bequest to
article as is covered by a third of tlie estate is tno joint two per-
property of the legatees. If, on the other hand, he sons and a
* According to tho other sect, the third is to be divided between
the legatees, tlioughns to the proportions tliero is some difference of
opinion between Ahoo Hunce/a and his two disciples. — D.f p. 620 .
® According to tho other sect, the third is to be equally divided
among tho legatees. — Ibid,
236
WILLS.
bequest to bequeath a thing to each of the two, a beginning must
the twa “ favour of the person to whom the bequest
was first made, and the deficiency must fall solely on the
second."
Assent by If a person should make a bequest of half of his
bequest in property, for example, and the heirs at first should assent,
the thirf- afterwards declare that they thought the amount to be
howaffeet- trifling, decree is to be given against them for the amount
wquraT^ which they insist that they thought the legacy to be, and
ctotion they are to be put upon their oaths as to the excess ; but
thought^ this is subject to some doubt. And if the bequest were of
the excess a slave or a mansion, and the heirs, after first assenting
was tririal, to it, should then allege that they thought it was no more
than a third of the deceased’s estate, or if more, only so
in a trifling degree, such claim or allegation on their
part cannot be attended to, because their consent in this
case involves a known object of the value of which they
cannot pretend ignorance at the time of assenting to the
bequest. -
The l)c- If a person should Iiequeath a third of his property by
thirdsharo "“J’ inooshui, or undividedly, the legatee is entitled to
nndi- a third of everything of which he died possessed. If,
titles rte"' ^1® bequeaths a specific article which is of tho value
legatee to of a third of his estate, the legatee becomes by his death
cveryAing **®^® proprietor of the article bequeathed ; nor have
And the the heii's any ground of objection thereto. And if the
bequest of Jeccased should have left both present and absent cficcts
A 8DCC1j1C ^
thing cii- (such as ready money and debts, for example), so much of
to t'ho**'™ specific thing must be surrendered to the legatee as a
whole of third of the property presently available will admit of,^
It, if not in ^yjjjjg ]jg jijiyg jq foy {jjjg rcmoinder of it until it
CXC*C'SS Of ft
third of the is rccovcrcd by tbe heirs; since what is absent is liable
estate. destruction, and may never be realized. Con-
• KC(j 2 iently, if tho bequest >vero of a third of his slave, two-
* According to the other secty they would apparently become
partners in tlie thing bequeathed. D,, p. iiHi).
^ There is somotohsciirity in the passage, but this is, 1 think, its
meaning, and it tallies with what follows, which in tho original is
marked as a branch of what precedes it.
THING BEQUEATHED.
237
thirds of whom prove to bo the property of other parties,
effect is to bo given to the bequest over the whole of that
third which belonged to the testator, and it is not restricted
to a third of the third ; because effect can he given to the
will without encroachment on the rights of the heirs, that
is, assuming that the rest of the testator’s property is
equivalent in value to two-thirds of the slave.
If a person should grant a specific legacy by a name When the
which is applicable to what is lawful and to what is “
forbidden, the former construction must bo put on thebeqnestis
bequest, to prcseiwe the intention of a Mooslivi free from
what is unlawful ; as, for instance, if the bequest were of lawful and
an 00(1 out of the eedan * in his possession, the name being
applicable both to a staff, or lawful implement, and afluk, taken- in
which is forbidden,'’ the testator must be held to have
intended the former. If, however, no other than the latter
is found in his possession, some lawyers have declared the
legacy to bo void ; while others maintain its validity, but
say that the forbidden quality must bo defaced from it,
and that it is only when that is impossible without
destroying all that is of any use in the article, that the
legacy is void.
Bequests of dogs, the property of the testator, arc valid,' Bequest of
such as dogs trained for hunting, or catching of game, or ^
for domestic purposes — as guarding homes and watching ful.
in corn-fields.
Section Second.
Of Ambigmiia Legacies.
When a person has bequeathed ajoozs, or part of his Meaning
property, there ore two traditions as to the projier inter-
pretation of bis words. Of these the most authentic
assigns a tenth of the testator’s estate to the legatee ; ^t, ■
according to the other, ho should receive only a seventh of
the third. If, again, he should bequeath a “ snhum,” or of tuhum.
share, the proper interpretation is an eighth ; while if it
Plniol of the samo word. ' See Im. D., p. 8 .
288
WILLS.
were shei, or a thing, it should be interpreted as meaning
a sixth.*"
Excentor
forgetting
purpose of
a bluest
should
apply it in
some good
way.
Bequest of
a sword
includes its
scabbard.
And of a
box or a
bag, its
contents.
A will ex-
cluding
children
from their
If a person should make a bequest for several purposes,
of which the executor has forgotten one or more, he should
dis 2 )oso of it in some good or proper way,^^ although some
of our lawyers have expressed an opinion that it should
fall back into the deceased’s inheritance.
If a person should bequeath a particular sword which
is in a scabbard, the scabbard and mounting or ornaments
are included in the bequest. In like manner, if he should
bequeath a box containing clothes, or a boat or vessel
which has merchandise on board of it, or a bag containing
linen, in all these cases, the things actually bequeathed,
and the other things contained in them, arc included in
the legacy. There is, however, another opinion on this
matter, though it merits but little attention.
If a person should make a will excluding some of his
children from their shares in his succession, the exclusion
is not valid. But whether his words are to ha treated as
dcccLed’s iBcpt is a question on which there are two opinions,
estate in- According to one of these, they are quite futile and of no
valid. efficacy whatever ; but, according to the other, the same
effect should be given to them as in the case of the bequest
of the whole of a person’s estate to a stranger, excluding
his heirs, when the bequest is valid as far as a third of his
And in- Property, and the heirs have their legal portion in the
effectual remaining two-thirds.^® The first opinion, however, appears
aThird! ^ better founded in law, though the other is supported
by a tradition which is now rejected.
Where the If a person should make a bequest in terms so ambi-
altogether affords 110 intcriiretation of them, it
uncertain, must be left to the heir to explain them as he may think
^ The constructions are probably founded on the traditions
referred to, as they do not correspond with the litoral meanings of
the words.
“ Woojoohvl-birr, Sec ante, p. 210.
That is, those who are of this opinion would deprive the dis-
inherited children of any interest in a third of the estate, leaving
them only their legal portion in the remainder.
THING BEQUEATHED.
239
proper ; as, for instance, where the testator has said, Give its intcr-
him a part of my property,” or “ a lot,” or portion,”
or ‘‘ a little ” or “ a trifle,” a valuable,” or ‘‘ a handsome to the heir,
present.” If, again, the testator should say, Give him
much of my property,” some lawyers are of opinion that
eighty dirhems should be given to him, as in the case of a
vow, whilst others have maintained that this construction
is peculiar to the case of vows, as being so limited in the
place where this is recorded of them.
It is preferable that bequests should bo kept below a Modcra-
* A • tion iri DC"
third of the testator’s property, insomuch that the bequest of (lueathing
a fourth is better than that of a third, and of a fifth better ^ecom-
than a fourth.
In cases, like the preceding, of ambiguous legacies,
the legatee should specify any jiarticnlar thing, and insist deccawd’s
that such was the testator’s intention in thejivords employed
by him in making the bequest, thq word of the heir is of the heir
preferred, accompanied l)y his oath, if the hjgatee should
also assert his knowledge of the fact, but otherwise there
is no necessity for the heir’s confirmation of his word by
his oath. .
KUL
Iluzz.
Xiiseeh.
240
WILLS.
CHAPTER IV.
OP THE LAWS OF BEQUESTS.
Repugnant When a person has made a bequest, anti then another
uco ucsts ■ ^ *
which is rcpujpiant to it, effect must bo given to the
latter.
Bequest of If a person should l)equeath a foetus in the womb, and
valMif should take place within six months from the
within s’. bequest, the legacy is valid ; but if the birth
months^'^ should not take place till ten months from the date of the
bequest, the legacy would not be valid. If, again, the
birth should occur at any period intermediate between six
and ten months, and the mother should have neither
master nor husband, the child is still to be decreed to the
legatee. But if the mother has either a master or a
husband, the offspring cannot be decreed to the legatee,
because, while it is possible that it may have been con-
ceived at the time of the bequest, it is also possible that
the conception may not have occurred till after it.
Case of a When a person has said, “ If there be a male in the
In womb of this woman ho is to have two dirhems, and if
the womb there be a female she is to have one dirhem," and the
acwlfling mother is delivered of both a male and q female, they are
to ita sex, to have three dirhems ; but should he haA’e said, “ If what
is in her womb be a male he is to have so and so, and if a
. female so and so,” and the woman is delivered of both a
male and a female, they are not to have anything.
Bequest of The bequest of a foetus in the womb, or of whatever
o/So**’ ^ produced by a female slave, or a particular tree, is
fiitnre pro- quite valid, as is also that of the residence of a mansion for
sUro or of ® period. Further, if a person should bequeath the
THE LAWS OF BEQUESTS.
241
sorvico of his slave, the fruit of his garden, the rosidonco of a
his house, or anything else of a usufructuary nature, for over
or for a fixed time, the advantage or profit to arise there- toty be-
from must be valued, and should it not exceed a third of
the testator’s estate the bequest is valid, while if more than
a tliii'd the legatee is to have as much as the third will
cover, and the legacy is void as to the excess.
When a person has bequeathed the service of his slave When the
for a fixed period, the expense of the slave’s maintenance
must bo defrayed by his heirs, as this is a duty which ”*4^’
follows or is dependent on the ownership of the slave, and ho main-
the legatee is entitled to no more than the service of the
slave, while all the other rights of ownership appertain to
the heirs, as solo, manumission, and the like, none of
which, however, has the effect of invalidating tho rights
of tho legatee.
If a person should bequeath a kowa or bow, this is to How the
bo construed ns meaning an Arabian bow for shooting
arrows, or what is known as a kotca <tl nuahab, kowa al nuhl,
and huaban, unless there is some circumstance from which
it may bo iufoiTed that ho meant a bow of some other
description ; and in all cases where a testator may have Generally
employed a term which is common or equally applicable
to several things, tho heirs have an option to fix on which- P|j^We to
ever of tho things they please and give it to tho legatee. thingsTtho
If, again, tho testator should say, “ Give him my bow,”-l>«i" }•“'’«
and only one is found m his possession, that one must be to fix it to
given to the legatee of whatsoever description it may bo. either.
If a person should bequeath to another “ one of his So also if
slaves,” tho option of fixing upon one in particular belongs [g
to the heirs, and they may give tho legatee a young or an of the tes-
old, a perfect or defective one, as they think proper. But giavL*"
if all the slaves but one should dio after the testator’s
decease, that one must be given up in terms of tho bequestij oie^hey
while if they should all die the legacy is null. But not so please,
if they are murdelred ; for in that case the heirs have still
their option to fix on a particular slave, and must give the
legatee his value if recovered from the murderer, and other-
wise leave him to his remedy against the latter.
PART II.. • B
242
\VILLS.
Wills ic- Wills or bequests are established in law by the testi-
mony of two witnesses who are moosl'ms, and just persons,
for their or in caso of necessity, when two just mooslinv witnesses
^ or infidel subjects,
except And in cases where projicrty only is concerned, tho testi-
where mony of one witness on oath may bo received, or of one
is era- male witness and two females, and the testimony of even
whenone * female witness may be received as establishing the
nukjrsnfficc. right of a legatee to a fourth part of what she testifies to,
of two women as supporting his claim to a half, of three
as to three-fourths, and of four as to tho whole.* But
Appoint- an appointment of executors or guardians by will can bo
aerators established only by tho testimony of two male witnesses ;
or guar- and in this caso tho testimony of women cannot be received ;
qd^’^o. i^or further, according to the most obvious analogy, can that
of one male witness on his oath bo received, although with
respect to tho latter there is some dificronce of opinion.
Testimony The testimony of an executor cannot bo received in
matters connected with his own executorship, nor as to any
cannot be thing from which ho may derive advantage to himself or
“* to his office. And if appointed executor for tho •expendi-
cqnnected turo of a specific part of his testator’s property, his testi-
exeentor- mony cannot bo received in favour of tho deceased to prove
skip. that this property does not exceed a third of his estate.
MisceUanems Cages.
When the
teststorhaa
directed
the eman-
dpation of
all his
slaves, and
the third of
his estate
is insnffi-
%
First. If a person should direct by his will tho emanci-
pation of all his slaves, when he has no other property
besides them, a third only of tho number can be emanci-
pated, and those are to be determined by lot. Should the
testator have arranged them in any order for emancipation,
the first in tho order , is to be first emancipated, and so on
as to the remainder, until the third of the properly is
' In questions relating to debts and properly generally, the testi-
mony of one man or two women is held to be suflioient; and in
questions relatilig to legacies and inheritance, the testimony of one
woman is enough, but only to the extent above mentioned.—
p. 306.
THE LAWS OF BEQUESTS.
243
exhausted ; and the bequest is void as to any that may he dent, how
over. If, again, ho direct a certain number to he set free,
without specifying the individuals, so many are to be deter- slaves ore
mined by lot. According to some the Jicirs are at liberty to
select the number specified ; but the mode of determining
by lot is recommended by its justice, and is the most
ap2)roved.
Second. If a person should on deatlibcd emancipate a Emancipa-
slavc by free gift without any compensation, and having
no other property besides, some of our doctors have good only
maintained that the slave is emancipated in toto, while
others are of opinion that ho is emancipated only to the die slave’s
extent of a third, and that ho must perform emancipatory
labour to the heirs for the remaining two thirds. This deceased
latter opinion is the more common or approved. Should otiu!r*p^
the deceased have emancipated only a third of the slave,
ho has also in this case to work out the remainder of his
value. But if the deceased has left any other pro2)erty
the remainder of the slave must also bo emancipated out
of the third of his estate.
Thirdly. If a jjorson should direct by his will the Where the
emancipation of a slave who is a true believer, it is an
incumbent duty to give cfiect to the will, and should no cmancipa-
slavo of this dcscrii)tion bo found, one must bo emancipated siavc°who
who is not known to bo a msih ot enemy of the sect of » a tme
Aly : and if the executor, supposing a slave to bo a true m
believer, should emancipate him, and it should afterwards one must
appear that the slave is the reverse of this, the pious
intention of the testator is notwithstanding effectual with cipatiou.
regard to him.
Fourthly., If a 2)ersou should bequeath a specific sum where a
for the emancipation of a slave, and none can be found at
that price, it is not incumbent on the heirs to make any fongd im-
purchase, but they may wait till one can be found at tlio
specified price ; or if they can find one at a less price, they aro entitled
should purchaso and emancipate him, and bestow on him ^
the remainder of the sum. *
244
WILLS.
CHAPTER V.
OF THE MOOSA-LHHO OB LEOATEE.
licmnst It is an indispensable condition that tbo legatee bo in
raistence bequest, and if he should not
at the time bc then alive the legacy is not valid, in the same, way as a
tequrat “ person deceased, or to one supposed to bo alive
but who afterwards proves to have been dead at tho time
of the bequest. In like manner, if one should make a
bequest in favour of a foetus hereafter to bo conceived by a
particular woman, or “to whomsoever may hereafter bo
found of tho children of such a man,’’ tho bequest is
altogether null and void.
l>egncicsto A legacy is valid whether it bo in favour of a stranger,
lu!irs*^or*’ ® s'mmee, though ho bc a stranger. Some
zimmeet doctors, howcvcr, havo .maintained the last, or legacies by a
'^“*“** Moohummudan to a zivmee, to be absolutely unlawful,
while others have restricted their legality to cases where
tho legatee is a consanguineous relative of tho deceased.
But the first doctrine, or that which sanctions the legacy
without any qualification, is tho most approved. With
bnt not to I'egord, again, to legacies in favour of Hunibees or hostile
hostile Infidels, there is some doubt ; but according to the most
authentic traditions they are forbidden and null,
to - Bequests in favour of the absolute slave of a stranger,
ofothcra^ and of his mooduhbur, oom-i-wtdud, and provisional
invalid, moolcatub, or one who has not paid any part of the
stipulated raBSom, are all equally invalid, even though
Otherwiae sanctioned by tho master. But legacies in fhvour of the
oto'Sovcs. testator’s own slave, moodubbur, mookattih, and oom-i^tdud
I.EOATEES.
245
are all valid, provided that they do not exceed a third of
his estate. Should the legacy to the slave be equivalent
to his value, he is forthwith emancipated, and the amount
bequeathed reverts to the heirs. Should it exceed his value,
the slave himself is entitled to the balance; and, upon
the other hand, should it fall short of his value, the
slave must make up the difference by working for the heirs
till his full value is completed, unless his value should bo
double the amount bequeathed, in which case the legacy is
void. Some lawyers, however, consider that it is still valid,
and that the slave must work out the difference whatever
it may bo ; and this opinion is the most entitled to appro-
bation.
When a person who is in debt directs by will the Effect of a
emancipation of his slave, and the value of the slave is
twice tho amount of the debt, the slave is emancipated, but a slave
must labour for five-sixths of his value ; but if tho value ^stator is
of tho slave is less than tho debt the legacy is void. Tho in debt,
reason is that debts taking precedence of legacies must bo
first discharged, and it is only out of a third of what
remains of tho estate that the emancipation can take effect.
It is otherwise in tho case of a gratuitous emancipation .
by a master on his deathbed, when tho law is as before
mentioned, on the ground of an express decision recorded
hy Ahd-oor-Iiuhntan as of tho Inuim Jdfer Sadik, on whom
be peace.
If a person makes a bequest in favour of tho absolute Beqnest
or unconditional mookatuh of another, and tho mookatub
has already paid a part of his ransom, he is entitled to as has paid
much of his legacy as is equal to the amount of tho
ransom so discharged. And when a person makes a Question
bequest to his own om-i-wtdud, tho legacy is valid
already mentioned, to tho extent of a third of the estate, one’s own
But whether her emancipation is to be put to the accowit
of the. legacy, or to the share of her son in tho testator’s whether it
estate, is a question that admits of different solutions,
some saying that she is to be emancipated oqt of the child’s towardshcr
share and to have her legacy besides, while others argue to
that she is to be emancipated out of tho legacy because bo paid to
246
\YILLS.
A legacy
to several
persons to
be equally
dmded
among
them,
without
regard
to sex,
though
they
should he
the testa-
tor’s chil-
dren.
there is no inheritance according to law until after pay-
ment of legacies.
When a legacy is bequeathed to several persons
absolutely, it is to be construed as divisible equally among
them. Thus, if a person should make a bequest to his
children, some of whom are males and some females, they all
take alike. So also in the case of a legacy to his ancles and
aunts, whether paternal or maternal. In like manner if the
legacy were both to his maternal and paternal uncles, they
would all take equally according to the most valid doctrine,
though there is a tradition the other way, which, however, is
rejected as unauthcntic. On the other hand, should the
testator make a distinct allotment of shares to each, giving
more to some than to others, his directions must be strictly
followed.
Bcqjicst to If a person should make a bequest to his kindred
how inter- kurahut), it is to be understood as intended for all
preted ; known to bo of his race (nmuh) or of the same paternal
descent. Some writers have said that it includes all
those who are related to him through his most remote
progenitors, both father and mother, who professed the faith
of Islam ; but this opinion is destitute of any testimony in
to iowm ; its support. If, again, the bequest bo to his kowm or nation,
it includes all those who speak the same language ; and if
ahl-beit; to the people of his house (ahl-beit) it includes his children,
father and paternal grandfather. Farther, if ho say to his
asheerah; askcerah (family), the nearest only of his numb are to be
understood as included in the bequest.
jfiran. If a person moke a bequest to his neighbours (jeerdn),
it includes, according to some doctors, all those whoso houses
are within forty cubits {ziraas) of his in every direction. But
there is another opinion which is far fetched and unreason-
able, that extends it to the occupants of forty houses on
eitber side of his.*
A bcqnest A bequest to a foetus in the womb actually existent is
valid as already described, but it requires that the child bo
id bom produced alive, and if it is still-bom the bequest is void,
olive. *
Sco ante, p. 210.
LEGATEES.
247
While if it is born alive, though it should die immediately
after, the legacy descends to its heirs.
When a Mooslim has made a bequest to beggars {fukeer)
it is payable only to those of his own religion ; and in like
manner if the testator be an infidel, such a bequest is
payable only to those of his own persuasion.
In all cases of bequest where the legatee happens to die
before the testator, some doctors are of opinion that the
legacy is void ; but others have maintained that, although
if the testator should retract the bequest it would be null,
whether the retractation take place before or after the death of
the legatee, yet if there is no retractation the legacy descends
to the heirs of the legatee. This of the two reports is the
most authentic and approved. If, however, the legatee
should leave no heirs the legacy reverts to those of the
testator.*
Bequest to
beggars to
be applied
to those of
testator’s
religion.
Legacy
docs not
lapse by
death of
legatee,
according
' to the best
opinion, if
he has left
heirs.
If a person should say, ‘‘ Give such an one such a sum,” When a
without specifying any purpose, it must be given to the directed to
legatee, who may dispose of it without restriction in anyway !>® applied
ho pleases. If again the testator should direct it to tlcninr”
bo expended in the way of God (suhacl allaki),
bequest must bo applied in some way to which reward is tions must
promised in a future state ; but according to some, exclusively
in holy warfare. The first opinion, however, appears to be
better founded. ,
A bequest in favour of one’s kindred is highly proper B^iucst to
whether they be his heirs or not ; and when a person
bequeaths a legacy to his aknib, or nearest of kin, it is to be construed,
regulated by the rules of inheritance, and nothing is to bo
given to a remote heir while there is a nearer in existence.
* Sco />., p. ()14, note where it is inferred “ that the death of the
legatee before the testator Would occasion a lapse of the legacy.”
The inference is founded on death being a substitute for acceptance,
which, according to the Ilanl files/* must bo after tlio testator’s death.”
But according to the Sheeuhs^ it may bo in his lifetime . — Antej p.
248
\nLL8.
CHAPTER VI.
OF EXECUTORS.'
Mnst^ It is requisite that an Exeentor shonld be a person of
understanding and a Mooslim, ns also, according to some
doctors, that he be an adil or just person, because a fasik
or profligate is unworthy of trust. Others again consider
al$obc"”‘ unnecessary because all Moodims are trust-
lirnc^f**** and may accordingly be agents and depositaries, and
nppoint- also becauso the appointment of an executor is dependent on
the devise of the testator, and is established by it. Yetifono
sequent?^ who was adil or just at the time of his appointment should
prove to prove to hofadk after the death of the testator, we may say
^l^tc that the appointment is nullified, for the confidence placed
they may’ in him by the testator was founded on a belief of bis probity,
and would have been withdrawn on its decline ; the judge
jndge. should therefore remoira him and appoint another in his
place.
rai^rbo lawful to appoint a slave as an exeentor without
appointed tho consent of his master, nor a minor singly, though ho
“ may be validly joined with an adult in the oflSce ; but even
minor in that case he cannot interfere with the management of the
Bingiy. deceased’s estate until he has attained to puberty. When
two persons are appointed executors, one of whqm is a
. minor and the other adult, the adult executor may act alone
until the minor has arrived at puberty, bnt when that
happens the adult executor can no longer act singly. If,
however, tho minor should die, or on attaining to puberty
‘ should prove to bo of unsound judgment, the other may
' Awueah, pi. of Wutee.
EXECUTORS.
249
continae to act singly, and tbo judge cannot in this case
force an associate on him, because there is still an executor
to the deceased, appointed by himself. Farther, whatever
may have been done by the adult executor during the
minority of the other cannot be undone by the latter on his
attaining to pubci'ty, unless contrary to the nature and
object of the trust.
An inddcl cannot be lawfully appointed executor to a An infidel
Mooilim, oven though ho be his relation by blood ; but an "Scutor
infidel may bo the executor to ono like himself. Further, to nnoihcr.
a woman may bo legally appointed an executrix when found A woman
in possession of the qualities and conditions requisite for
the office.
When two persons have been appointed in general Joint ex*
terms, or with an express condition that they are to act ®o“toM
jointly, one of them cannot act singly without the other, singly,
and if cither of them should persist in doing so, none of
his acts are lawful except such as arc positively incumbent
or necessary, as for instance the providing of clothes and
food for the young children of the testator. Further,
it belongs to the judge to compel them to act jointly, and
if that be impracticable, he may appoint others in the stead .
of both. Further, should they moke a partition of tho
property between themselves for the purpose of separate
management that also is unlawful; and if one of them
should fall sick or become incapable of performing tho
duties of tho office, the judge must appoint an associate to
tho other who is competent ; whereas if one of them should
die or become profligate, the judge has no such power, and
the remaining executor is empowered to act singly,* the except in
judge having no authority while there is an executor of the
deceased surviving and competent to act. This point, how- ehip,
ever, is open to some doubt and difficulty. If tho testator
has made it a condition that the executors are to act jointly or nndcr
and separately, the intromissions of each singly are in that
case quite lawful. They may also lawfully divide the by tho '
^ . testt^tor.
* Aoeoiding to the Hanifites, the iuteiposition of the judge seems
necessary.— D., p. 071.
250
WILLS.
property between them and each take upon him tho
management of a part, in the same way as they might have
acted separately before the partition.
Ancxccn- An executor may lawfully reject his office while tho
refuse to testator is alive, provided that ho is duly informed of the
accept tho rejection ; but if the testator should die before tho rejection,
ofHcc. after it without the information having reached him, no
• effect can bo given to the rejection, and it is incumbent on
tho executor to take upon him the duties of the office.®
wmpetent executor is incapable of discharging the duties of
executor his office the judge may appoint an assistant to him ; but
ant my bo guilty of fraud he must be displaced and another
appointed, appointed in his room.
Kxccutor
not re-
sponsible
except for
neglect ;
and may
pay hiin-
hClf if A
creditor
to the
deceased ;
and even
purchase
bis pro-
per^ at a
jnst price.
Bnt cannot
at death ^
devolve his
authority
on another
unless
sanctioned
by the
testator ;
and tht;
care of the
original
An executor is an mnecn or trustee, and therefore not
responsible for any loss or destruction of tho deceased’s
property, unless occasioned by his departure from tho
conditions or rules of his office, or by some personal
neglect. And if he bo a creditor of tho deceased, ho may
lawfully pay himself out of tho property in his hands,
without the order of a judge when he has no proof of tho
debt. According to some lawyers he may do so absolutely,
that is in all cases without a judge’s order. But whether
he can purchase the deceased’s property from himself on
his own account is a question that admits of some doubt,
though, according to the most approved doctrine, he may
lawfully do so at a just valuation.
When an executor has his testator’s authority for
bequeathing the management of the estate at his own
death, he may lawfully do so by general agreement. But
whether ho can do so when the testator has neither
authorised nor forbidden such appointment, is a question
on which there are different opinions.^ Of these tho
opinion which forbids such exercise of power on his part is
tha,t which is most approved. Accordingly in such case
at his death tho superintendence of tho original testator’s
® I tliink some previous acceptance is implied. See antB, P* 229,
and iA, p. (ifJO. •
* He can, according to tlic Hanifitos, without any difference of
opinion.— i>., p. f>72.
EXKCtJIOBS.
251
estate devolves upon the judge. In like manner, if a estate
person should die without appointing an executor, the
superintendcnco and care of his estate belongs to tho
judge. And if there is no judge present on tho spot, any
true believer in whom confidence can be placed may law-
fully assume the care and management of tho estate. But
on this point there is room for doubt and diiference of
opinion.
If a person whose father is alive should appoint a Agnardian
stranger his executor to superintend the property of his ^^”nted
son tho appointment is not valid, and the power over tho father
orphan belongs to his grandfather, to the exclusion of the ^hen the
father’s executor. But some doctors are of opinion that
the nomination by the father is valid to tho extent of a uUtc.
third of his property, and for the discharge of all rights or
claims upon his estate.
When a person has appointed an executor for tho Limited
superintendence of one particular matter, his power is^fp"*”*^”
restricted to that specific object, and any other intromis-
sions by him with tho estate are unlawful; an executor
being in this respect exactly like an agent who is strictly
confined to the bounds of his commission.
MUcellniieous Cases.
First. The qualifications required in an executor have Qnalifiaa-
rcference to tho time of his ap]3oinl!luent. Some lawyers,
however, maintain that tlioy should be referred to tli®
death of tho testator, and that, accordingly, if a youth should the time
bo appointed an executor and become adult before his death
tho appointment is valid ; and in like manner as to the ^
conditions of freedom and understanding. But tho former
doctrine is the most generally approved.
Second. The appointment of an executor or guardian A testn-
to every one over whom tho testator has control is valid,^as
for example a child how low soever in descent, provided may be
that he is of tender age or a minor. But if a person
should nominate an executor for his children who are over whom
adult and of sound understanding, the notnination is of ^^has
no value and cannot bo sustained. And even tliough tho control.
252
WILLS.
Snperin-
tenclcnt
of an
orphan’s
property
may de-
duct his
cx|)cnscs.
appointment shonld be for the superintendence of property
which the testator himself has left to the parties, the
ezccutor has no right to intromit with it, not to the extent
oven of a third. Ho may, however, lawfully separate &om
it what lawfully belongs of right to the deceased, that is,
enough for the discharge of his debts and alms.
Third. It is lawful for every one who has the superin-
tendence of the property of an orphan to take from it tho
ordinary hire or rocompence due for his trouble. Some
doctors are of opinion that he is limited to what may be
sufficient for his expenses ; while others maintain that ho
may take both (that is, hire and expenses). But tho first
opinion is the most approved.^
That is, I suppose, hire only, os including expenses.
( 253 )
CHAPTER VH.
Appendages.
TnESE arc of two kinds, tlio first of wliich comprehends
the follomng eases.
First. When a person has bequeathed to a stranger Bequest of
the like of his son’s portion, having only one child, this is ®‘
in fact a partition of his estate between them, and the portion,
legatee is entitled to a half of it, unless the heir refuses his
consent to the full bequest, in which case the legatee’s
interest is reduced to a third. If, again, the testator has two
sons, the legacy is a third of the estate, and if three, it is a
fourth. The general rule is that the legatee be added to
the other heirs and treated as one of them, if they are all
entitled to share equally in the inheritance; while if their '
shares difier, some being more and some less, ho ranks with
the weakest of them, or the one whoso share is the least,
unless the testator has expressly saifi that his share is to bo
equal to that of the highest,* in which case effect must be
given to the terms of the bequest.' Further, if the testator The like of
should have said " like the share of my daughter,” the te?*""wiicn
legatee, according to ns, is entitled to a half when there is there are
no other heir besides the daughter ; but his share is reduced
to a third if she refuses her consent to the full legacy,
because, according to our doctrine,' daughters inherit the
whole estate to the exclusion of the astibah or residuories, ,
and the legatee thus becomes like a third daughter.
If a person having three half-sisters by the mother, and The like of
— one of his
1 Or like some one's in particular, as in Uio case of tho son's
portion.
‘ As opposed to tliat of tlio Hanifites.
254
WILLS.
heirs, when
he has left
only half-
brothers
and half-
sisters.
The like of
a daugh-
ter’s when
throo half-brothers by tbe father, should bequeath to a stranger -
the like of tho portion of ono of his heirs, the legatee is to
be treated as one of the sisters, and so to receive ono sharo
out of ton parts into which the estate must bo divided,
while tho half-sisters take three, and' tho half-brothers
the remaining six, conformably to the rules of intesthto
succession. If, again, tho testator having a wife and
daughter bequeaths “ the like of the sharo of my daughter,”
he has kft and the heirs assent, tho legatee is entitled to seven parts
widow. estate, the daughter to as many, and tho wife to two,
tho whole being divisible in such a case into sixteen
portions. Nevertheless, it would be more proper to say
in this case that the wife is entitled to no more than ono
part out of fifteen, that being the number of shares into
Tho like of which tho estate should be divided.” If, again, a person
them when having four wives and a daughter should say ” like the share
ho has loft of one of them,” the division of tho estate would bo into
thirty-two portions, whereof an eighth or four shares would
daughter, bo equally divided among the wives, tho legatee would take
one share like one of them, and tho remaining twenty-
seven would pass to the daughter. Yet if we were to say
in this case that tho division should bo into thirty-three
shares it would bo more agreeable to tho general principles
of law.
Bluest of Second. If a pcrsoiu should bequeath to a stranger** the
* portion of his child,” the bequest according to some is void,
because it is a bequest of what belongs to another ;* but it
is more agreeable to principle to say that the bequest is
valid, and should be construed in tho same way os if it were
of the like the like to his share. If, again, the testator, having a son
Ihimof a afterwards becomes his murderer, should bequeath the
fion who like to his sharo, here, though some say that the bequest is
valid, yet it is more in confonnity with tho principles of law
parricide ; to vay that it is invalid.
’ Tho original division being into eight parts, of which one is to
the wife and seven to tho daughter, a “ like to the shore of my
daughter" is seven, and 7 + 7 -f 1 = 16.
* Tho Hanifites appear to bo of this opinion. — Z)., p. 620.
APl'ENBAOES.
265
Third. When a person has hequeathod iho donblo of oftho
his child’s portion, the legatee has two equivalents of the hi*”cWid’»
portion ; and if he were to say zodfan (in the dual) or two portion,
doubles of it, the legatee would have an equivalent to four
portions, but only to three according to some whose opinion
is preferred as being more certain : and the same is the law
when tho testator has used tho expression zoctf-i-zodf, or
double of the double of his portion.
Fourth. When a person whoso property is scattered Bequest to
about in different places has bequeathed a third of it to tho ^^yat
poor it is lawful to apply whatever is found in the city to the different
poor of tho place ; and even the whole of it may bo lawfully how to be
expended on the poor of tho testator’s city, and on those of
them who are on tho spot, without following or searching for
any who are absent. The number of those who are to share
in the gift must, however, be three or more, by reason of the
testator’s expression being in tho plural, according to tho
best authority. In like manner, if ho should say, “Emancipate
slaves,’’ in tho plural, it is incumbent on tho executor
to emancipate at least three, unless a third of tho testator’s
estate should fall short of the object.
Fifth. When a pci-son has bequeathed a slave to one. Bequest of
and tho whole of tho remainder of tho third of bis estate mLns°one
to another, and tho slave becomes defective previous to his
delivery to tho legatee, the other legatee is entitled only to
the balance of the third, after deducting the value of tho
slave, if supposed to be perfect or without defect ; because
tho testator evidently intended a perfect slave and the
balance, ns the subjects of his respective legacies. In like
manner, should the slave die before the testator’, though tho
first legacy is necessarily annulled, the second legatee is
entitled to no more than tho balance of the third after
deducting the value of the slave, as if the slave were still
alive and in good condition; and if such value should
amount to a third of tho testator’s estate, the second
legacy would also be annulled.
Sixth. When a person has bequeathed l^is slave to the Aslavobe-
slave’s own son, who accepts the bequest on his deathbed, ^ wforo
the slave is emancipated as against the whole property of son, and
m
WlUiS.
accepted the legatee, according to all onr doctors, mthont any
' reference to the value of the slave coming within a third
emanci- of it, for this necessarily refers only to what a testator
^instthe bequeaths out of his own property, and here the father
becoming tho property of the son by his acceptance of the
legacy, his emancipation immediately follows as a necessary
consequence.
Bequest of Seventh, When a person has bequeathed a mansion
which falls which falls down and is levelled to the ground before the
^®bitor’8 death, the legacy is void because the name of
testator’s mansion {dar) is no longer applicable to it. But this is
death. liable to doubt.
Joint be- Eighth. When the testator has said, “ Give Zeid and
the poor such a sum,” Zeid, according to some doctors, is
and to tho entitled to a half, but, according to others, only a fourth.
But tho first doctrine is tho best supported.
Aets on The second kind of appendages relates to disposals of
Snch'asnrc hy a sick person, or on deathbed. Those are of
not to take two descriptions— or such as are deferred or not to take effect
^Xtd/ testator’s decease, and such as take effect
are to be immediately. The first are to bo treated in every respect
icfewi'w"* legacies according to the unanimous consent of our
doctors, and like the acts of a person in beal^ which
are done with reference to his death, so as not to take
effect till after it. ^
Such as The second description of acts, or such as are of immedi-
efl^im-* operation, like muhabat or connivance at loss in contracts
mcdiateljr, of exchhnge, and gift, appropriation, and emancipation,
clf'qrinim ^beso aro good according to some of our doctors as against
rcfcarding the whole of the maker’s property, and according to others
only as against a third.* Both opinions, however, agree in
this, that if he should recover from his sickness they are
valid against himself and against bis heirs; and the
difference of opinion is only when he dies of the same
disease.
Hero it is necessary to note the diseases which restrain
' This is the opinion ,of the Honifites. See pp. M2, 001,
and 640.
Dentil,
illness.
APPENDAGES.
257
a man from disposing of more than a third of his property.
Upon this point, then, we may say that every disease which Dangerous
is usually accompanied with apprehension of death, is said
to be dangerous, such as hectic fever, consumption,
haemorrhage, bilious or bloody swellings, fetid purgings,
and such as are mixed with oleaginous matter or black
excrement, and the like. Diseases, again, from which th(3re Diseases
is usually recovery have no other effect on a man’s disposal go
of his property than if ho were in a state of health, such as sidcred.
temporary fever, headache whether with continued augmen-
tation or not, ophthalmia, and a tubercle on the tongue.
Diseases, again, which admit of being classed as cither. Dubious,
that is as dangerous and undangerous, are putrid fever,
diarrhooa, and phlegmatic swelling. It were, however, General
better to ascribe the effect under consideration to all
diseases which arc in fact accompanied with or terminate
in death, whether they are customarily dangerous or not.
But occasions of actual conflict in war, or of childbirth in
women, or of storms at sea, have not the effect alluded to,
namely, that of impairing a person’s power to dispose of
his property, because, in point of fact, the term disease is
quite inapplicable to them.
Here some miscellaneous cases present themselves for
consideration.
Fint. When a person in sickness has made a gift and
also entered into a mnliahat transaction, and the third of deathbed
his property suffices for both purposes, there is no question
that effect is to bo given to* both. But if it should fall to priority,
short, the first act of the deceased is entitled to a preference,
and so on as to the others in succession, until the third is
exhausted, when the deficiency falls solely upon the last.
Second. When a gift of immediate operation, and one
whose effect is postponed or suspended, are entered into at gi^en to
the same time, a preference is to bo given to the former,
effect being also given to the latter if the third of the estate operation
is sufficient for both purposes ; but if not, the latter is such
valid so far as the third will boar,, «nd void as to the deferred,
remainder.
Third. When a sick person having no more than
PART II. • " S
268
WILLS.
grain on
deathbed,
where the
loss ex-
ceeds a
third of
the estate,
how the
excess is
to be
restored
so as to
avoid the
objection
of usurjr.
Muhahat
of a slave
on death-
bed for
half his
value, how
to be ad-
justed be-
tween the
purchaser
and the
heirs when
they refuse
to allow it.
Case of
emancipa-
tion of a
female
slave and
marriage
with her
on death-
bed, both
valid.
koorr of grain of some kind, of the value of six deenars,
sells it for a koorr of inferior grain of the value of three
deenars, the loss by tlie muhahat is a half of his whole
estate, whereas all that he can lawfully dispose of is no
more than a third, and the purchaser should accordingly
restore a sixth to the heirs, but that would be usurious,
and in order to make a valid transaction, it is necessary
that he should give buck to the heirs one-third of their
good koorr, and that they should give back to him one-
thii'd of his inferior koorr ; there will thus remain with the
heirs two-thirds of the koon, or two deemrs in value, and
Arith the purchaser two-thirds of a koorr, or four deenars in
value, which will only be an excess of two deenars or one-
third of six (the whole estate), which is just the amount
which the seller could lawfully dispose of in his last
illness.
Fourth. If a sick person should sell a slave of the
value of two hundred for one hundi'cd, and afterwards
recover of his disease, the contract is necessarily binding.
But if he should die,, and the heirs refuse to ratify the
sale, it is valid so far as a half of the slave is opposed to
what he actually paid, and that is three parts out of six,
and the muhahat is good as to tAVO sixths, or one third of the
six, and these together amount to five sixths of the slave,
to which extent, then, ^he sale is valid, and void only as to
the remaining one sixth, which therefore must be returned
to the heirs. The purchaser, hoAvcver, has an option, and
may cancel the sale on account of the partial invalidity of
the bargain, or abide by it ; but should he adopt the latter
alternative and offer the heirs a compensation for a sixth
of the slave, they also have an option either to reject or
accept, their right being involved in the substance or
person of the slave.
• Fifth. When a person in his mortal sickness has
emancipated a female slave, married and consummated
with her, the emancipation and the contract are both valid,
and the widow is entitled to succeed as an heir to her
husband, if her value is within a third of his estate. But
if her value exceeds the third there is the same difference
APPENDAGES.
269
of opinion with rospcct to all throc^ that is^ the emancipa-
tion, marriage, and right of inheritance, as has been
already described regarding the immediate acts of a person
on deathbed.®
Sixth. If a sick person should emancipate his female But if her
slave whoso value amounts to a third of his property,
marry her at a dower equal to another third of his property, to a third
consummate his nuptials with her, and then die, the
marriage is valid, but the specified dower is void, because specified
it is in excess of the third. The widow, however,
entitled to her share as an heir according to the ordinary
rules of inheritance. And some doctors are of opinion
that she is farther entitled to the rnnlir-i-misl, or proper
dower. On this point, however, there is room for doubt.
Others again maintain her right to the whole, or emanci-
pation, marriage, and dower.
See antet p. ^50.
BOOK VII.
OF FURAIZ, OR INHERITANCE.
CHAPTER 1.
INTRODTJCTOEY.
Section First.
Carnes of Inheritance.
The right to inheritance is founded on nnsuh or con- Twocanscs
sanguinity, and on suhiih or special connection. Under
nnsub are comprehended three classes or series of persons : or
First, the parents, and the children how low soever, consan-
Second, the brethren and their children, how low soever, ’
and tho grandparents, how high soever. And third, the’
maternal and paternal uncles and aunts. Snbuh is of two Subtib or
kinds : zowjceut, or tho relation between husband and ejection,
wife ; and wula, or dominion — of which there are three
descriptions; tho wula of emancipation, tho icula of
responsibility for offences, and the wula of Imamnt, or
headship of the Mussulman community.
Heirs may be divided into tliree classes. First, those
who have no right except by fiirz, or special a 2 ii)ointmcnt three
by law to a share in tho deceased’s estate ; second, those classes,
whose right is sometimes by furz, and sometimes by
kurahnt, or kindred to tho deceased; third, those wjiose •
right is exclusively by Icurabut.^
The first class comprehends tho mother from among First class.
those whose right is by misub or consanguinity, and the
• •
' 'Ike enumeration must not bo considered us indicating any
order of precedence. The third doss, in ioct, includes tho son.
INHERITAKCE.
Second
class.
Third
class.
Kindred
who are
whole
estate
directly.
husband and wife from among those whose title is by
subub or special connection. The second class compre-
hends the father and the daughter or daughters, the sister
or sisters, and the kulalut of the mother, or those rela-
tives who are connected through her only. The third
class comprehends all other heirs besides those who are
comprehended in the two first classes.
When the heir is a person for whom no share has been
n^"s^rs appointed, and there is none to participate with him, that
when they jg no other heir equal to him in degree, the whole inherit-
take the <tnce is his, whether his right be by ntisub or by subub. If
there is another associated with him, for whom also no
share has been appointed, they take the inheritance between
them. When associates in the succession differ in the
channels through which they aro connected with the
deceased, each set (stirps) takes the portion of the person
through whom they aro connected with him ; as, for in-
stance, when there are maternal and paternal uncles or
aunts of the deceased, the former take the portion of a
mother, which is a third, and the latter the portion of
a father, which is two-thirds.
When the heir is a zoo furz or sharer, he takes his
takrth^r appointed portion as such ; and if he has no equal, that is,
degree, he takes the
remainder surplus also by rudd ot reversionary right. Thus, when
there is a daughter with a brother, or a sister with a
paternal pncle, the daughter or sister takes first her
appointed jiortion, and the remainder then reverts to her
because she is nearer to the deceased,
toairtfc™ observed that the surplus never reverts to a
wife, and reverts to a husband only in the single case of
there being no other heir than the Imdm.
If the sharer has an equal in degree who is a sharer
alsot and the shares are not in excess of the whole estate,
it is to be divided according to the shares ; and if there is
any surplus it returns to them all by reversionary right,
throngB unless any of them is excluded by a hajib,* or unless a
Sharers
when alone
When .
there is a
deficiency
it falls
^ Active participle of hujub^ exclusion^ for which p* 270.
INTBODUCTOBY.
263
single one of them is entitled to the surplus by virtue of the
his connection with the deceased. If there is a deficiency, ^
it falls upon the portion of the daughter or daughters,
or those who are related by the father to tho deceased,
and not upon tlioso whoso relationship is only through the
mother."
As examples of the first case, or that whero the shares Examples,
are not in excess of tho whole estate, suppose that the
deceased has left both parents, and two or more daughters,
— or two children of his mother, that is, half-brothers or
sisters on her side, with two full sisters or tw'o half-sisters
on tho father’s side — or a husband with a half-sister by
the father. As an example of the second case, or that
where there is a surplus, suppose that the deceased has
left both parents and a daughter. And as an example of
the third case, or that where there is a deficiency, suppose
that the heirs are both parents, a husband and two daugh-
ters, — or both parents, a husband and a daughter, — or a
husband or wife and two childi'en of tho mother only, with
two full sisters or half-sisters on the father’s side.*
If the equal of tho sharer is not himself a sharer, he A non-
takes tho whole of what remains after satisfying the shares ;
as in tho case of both parents or one of them, and a son, —
or a father with a husband or wife, — or a son with
husband or wife, — or a brother \vUh a husband or wife.
Section Second.
Impediments to Inheritance.
Tlio impediments to inlieritauco are three Infidelity,
Homicide, and Slavery/
By infidelity as an impediment to inheritance is to ho Infidelity,
understood everything that excludes tho believers in it
“ According to tlie IIanifites,it is distributed among all the slSirers
by what is coiled the Awl^ or increase . — See M. L, p. 89, and
IK P..713.
^ Illustrations of tlicse cases will be found post-—oi the first at
p. 305, of the second at p. 399, and of tho third af p. 390.
® According to tlie Hanifites, difference of religion generally, and
difference of countay, are impediments to inheritance.— ilf. L. /., p.
264
INHEItITANCE.
from the. titlo of hUhn. And no nnbeliever, whether a
subject or an alien, nor an apostate from the Moohummudan
faith, can inherit to a Mooslirn ; but a Moosl'm may inherit
to an original infidel or to an apostate ; and if an infidel
should dio leaving several heirs who are infidels and one
heir who is a Mooslirn, the whole inheritance would go to the
Mooslirn, though he were only an emancipator or a patron
by responsibility,® to the total exclusion of the infidels
however near they might be by blood to the deceased. If,
however, an infidel should have no heir whatever who is a
Mooslirn, another infidel may in that case inherit to him,
provided that the deceased were an infidel by origin ; but
if ho were an apostate, the inheritance would devolve on the
Imam upon failure of Mussulman heirs. According to ono
report the infidel heir would in that case also bo entitled to
inherit ; but the report is not considered authentic.
If a believer has left only infidel heirs, they do not
inherit his property, which goes to the Imam upon failure
CjjnTcreton of Mussulman heirs. If, however, an infidel should embrace
ancestor’s ancestor’s death, previous to the partition
I'mes'Sie property, he would be entitled to participate with
iiiipedi- those who are e^ual to him in degi’ce, or be preferred to the
luent. whole inheritance if nearer to the deceased than the other
Exceptions heirs. But if the conversion does not take place till after
the partition of the estate, or if there is only ono other heir
(when of course no partition would be required), the
conversion of the infidel is of no avail, and he has no
share in fhe inheritance ; except that in cases where there
is no other heir than the Imdm, and an unbelieving heir
embraces the faith, he is to be preferred to the Imdm
according to a report by Aloo Bmeer. Some, however,
have alleged that conversion only when previous to the
transfer of the property to the public treasury confers a
preferable title on the heir, and that after such transfer it
confers no right whatever. While others, again, have
denied bis right in both cases, upon the ground that the
Imdm ought prpperly to be considered the same as a single
‘ See post, p. 301.
INTaODTJCTORY.
265
heir. If the heir is a husband or wife,' and there is another
heir who is an infidel but embraces the faith of Islam, he is
entitled to the surplus after payment of the share appointed
to the husband or wife. Such at least is the prevalent
opinion, but it is liable to some difficulty arising from the
impossibility of making a partition in the case of the
husband ; and if therefore it were said that the convert
participates with a widow only, and not with a husband, it
would appear to be the most just decision, because in the
case of the widow partition is possible as the convert has a
preferable title to the Imam, whereas a husband in virtue
of his reversionary right becoming entitled to the surplus,
there is no room for partition in his case, — which is like
that of a believing daughter and an infidel father, or a
believing sister and an infidel brother.
Connected with this impediment of infidelity are the
four following cases : —
First, If one of the parents of an infant be a believer, Constme-
the construction of law is in favour of the IsUm of the infant, ijj’fevour"^
and if one of the parents of a child, both being infidels at of a child
the time of its birth, should ombraco the faith during its
infancy, the rule of law is tho Sbme. If the child on^renj? is
attaining to puberty should reject the fiiith, he is to bo or con-
treated rigorously and accounted an apostate if ho persist
in his rejection of it. •
verted in
its infancy.
Second. If a Christian should leave infant children, Childrenof
and a brother’s son and a sister’s son who are believers, tho “^0™^°
estate must be divided between the believers, thi^brother’s heirs ^
son taking two-thirds, and tho sister’s son one-third, but
they must maintain the children of the deceased by con- maintained
tributions proportionate to their respective shares. If on pro^^o™
attaining to puberty the children should profess the faith to their
of Islam, they have a preferable title to tho inheritance,
according to a report of Malik Ibn Ayoon; but if they
make eWee of infidelity, the property of the heirs is
established in what they first inherited, and tho children
are entirely excluded. This decision, howaver, is not free
from difficulty, because, in the first place, an infant is in
the same situation os its parent in respect of infidelity ;
266
INHEBITANOE.
and secondly, because a partition of property previous to
an adoption of Islam precludes any future right to it.
DilTcrcnco Third. Believers inherit to each other, though they
impc(U belong to dilferent sects ; and infidels inherit to infidels,
mcnt. though of different persuasions.
stores The property of au] apostate who was by birth
were born or parentage a believer, is to be divided amongst his heirs
in the faith at the date of his apostasy: and his wife also becomes
Accounted V ^
dead from immediately divided from him, and must observe an iddut
as in the case of her husband’s death, whether he is imme-
apostosy ; diately slain or continues to live ; and ho is not to be called
on to repent. A woman, however, is not to bo slain for
not so. her apostasy, but is to l)e imprisoned and scourged at the
times of prayer, and her property is not to l)e divided until
And males her actual death. With regard to a male apostate who
the faith'” uot by birth or parentage a believer, he is to be first
time* tcT*^ called to repentance, and if he repent, well ; if not, ho is
repent. then to be slain, but his property is not to be divided until
his actual death, either naturally or by the hand of justice.
The icldiit of his wife, however, commences from the date
of his change of religion ; and if ho returns to the faith
before the expiration off the iddut he has still a preferable
right to her ; but if the iddut has once expired his right is
gone for ever, and he has no means of retaining her.
Homicide By homicide as an. impediment to inheritance is to be
tentfonai Understood that a person who has slain another wilfully
prevente and unjustly is precluded from inheriting to him ; but if
butn^””’ ^us been done rightfully, it is no impediment,
when acci- Homicide by mistake also is no legal bar to succession,
dental. according to the most prevalent doctrine,^ although Mofeed
has, apparently with some propriety, excluded from the
operation of this rule tlie deeut or fine to be paid in expia-
tion of the deed, wliich the slayer is prevented from
inUbriting. This impediment applies equally to the father
and the child, and all others connected with the deceased,
whether by consanguinity for special connection ; and if
there is no other heir besides the slayer, the inheritance
must go to the public treasury^
^ It is, according to the Honifites. — M. L, p. S8, md D., p. 097.
INTBODUCTOBT.
267
If a person should slay his father, and the parricide Child of a
has a child, this child may inherit from the grandfather,
should he leave no issue of his loins, for the crime of a barred
father is no bar to the succession of his children ; but if c^o^'by
the heir of the murderer be an infidel, they are both his father’s
excluded together, and the inheritance goes to the Imam, unless’ an
unless the infidel should embrace the faith, when he would
be entitled both to the inheritance and the quest of blood, imam is
But upon this point there are the following cases : —
First. If a murdered person leave no other heir than ImUm may
the Imam, he may cither demand retaliation, or the expia- °
tory fine with the consent of the murderer, but ho is not at blood, but
liberty to forgive the offence altogether. patdom
Second. The fine of blood is considered by law as the Fine of
property of the person slain, and is subject to the payment
of his debts and legacies, whether the homicide were inten- the estate
tioual or murder, supposing the fine to be accepted, or by
mistake. slain;
Third. All persons connected with the deceased, whether and may
by consanguinity or special connection, may lawfully inherit ^
the deeut or fine of blood, except those connected only heir except
through the mother, with respect^ to whom there is Bne^only
difference of opinion. And a husband or wife does not by the
inherit the right of retaliation for the murdered spouse ;
but if the right is commuted by mutual consent for the
deeut or expiatoi^ fine, they enjoy their appointed shares
of the amount.
The third impediment or slavery operates with respect Slaveiy
to both the heir and the ancestor.® If therefore a person
should die leaving an heir who is free and another who is a tbo hdr
slave, the whole inheritance would go to the former, though
remote, to the exclusion of the latter, though near. But if
the slave heir should have a child who is free, ho is not ' ^
debarred from the succession by the slavery of his pardht.
And, further, if there are two or more heirs, one of whom
is a slave at the ancestor’s death but is emancipated before
the partition of the property, he is entitled to participate in •
Mowroot, literally, inherited.
268
INHERITANCE.
the succession if equal in degree to [the others, or to take
the whole’ alone if he is nearer to the deceased. But
emancipation after partition confers no title to a share in
inheritance. So, also, it is ineffectual when there is only
one person who is entitled to the inheritance, and there is
consequently no occasion for partition in which case the
slave gets nothing by his emancipation.
When a When the deceased has left no other heir than a slave,
Mto licirhc purchased out of the estate and then
is to be emancipated, whereupon ho becomes entitled to the residue,
proprietor may be compelled to dispose of him.
estate and Should the property left by the deceased be inadequate to
^teT'and purchase, some doctors have said that the slave must be
is entitled rausomcd to the extent of the property, and left to work
rcsi*dac. remainder of his price by emancipatory labour, while
others have maintained that ho is in no respect to be
ransomed, but that the whole property goes to the Imam ;
and this opinion is better supported by traditionary authority.
So, also, if the deceased have left two or more heirs who
are slaves, and the share of each or of one of them should
fall short of his value, none is to bo ransomed, but the
whole estate passes to the Imam. If, however, a slave
is partially emancipated, he is entitled to receive out of his
share a part proportioned to the extent of his freedom,
while he is debarred ffrom a portion proportioned to the
extent of his slavery. The same rule is applicable to the
person from whom an inheritance is derived ; and female
slaves are considered by law in the same predicament with
males. Upon these points two cases arise : —
Slaves to First. It is universally agreed that parents are to be
^ ont*o£*" J^“**somed out of the property of free children ; but with
property respcct to the converse of this, or the ransom of children
out of the estate left by their deceased parents, there is
iiren. somedoubt. The affirmative is, however, the better founded
opinion. With regard to all others besides parents and
children, whether they are to bo ransomed, or not, there is
, also a difference of opinioq, but the negative of this
proposition appears to bo the more prevalent and is better
founded.
INTBODUCTOBY.
269
Second. An oom-i-ivulud, or female slave who has home An mm-i-
a child to her master, has no claim to inherit from him.
' no snare in
So, also, neither has a moodiibbur, or person to whom her mas-
freedom has been granted at the proprietor’s death, though
he should happen to be in the predicament of heir to
his mooduhhir or person who has so granted him his
freedom. And in like manner with respect to a viooJcatub
or person who has stipulated to pay a ransom for his
liberty, whether the contract were conditional or absolute, “
provided that no part of the ransom has been paid.
As appendages to the whole subject of impediments to
inheritance the following cases present themselves for
consideration : —
First. Liiin, or imprecation, has the eflect of cutting Xi<f« cuts
off the nusuh, or descent of a child. But if the child be
subsequently acknowledged by the husband, tlio connection a child,
between 'him and the child is so far restored that the child
can inherit from him, though he cannot inherit from the
child.
Second. Wlien a person is absent from his home or The pro-
countiy, at so great a distance as not to be known or hoard
of, his property cannot bo dmded among his heirs until missiug
his death is fully established, or until such a period shall
have clapped as to remove all probability of a person like divided
him being still alive. His property may then bo decreed until
to his heirs who may be in existence at the time of the it may be
decree. Some, however, have said that the division should
be made after the expiration of ten years, while others have that he is
denied the legality of the distribution altogether, directing
that the property should bo entrusted to the keeping of an
heir in opulent circumstances. But the first opinion is to
be preferred, as best founded in reason and justice.
Third. 'A feetus, or embryo in the w'omb, is entitled A/atus
to inherit if born alive, but if still-born it has no title to
nerit it
^ Tho distinction between the two kinds of Mookatahut is, that
in the oiio tliero is a condition that, on any failure in payment of the
ransom, the tnookatuh sliall revert to a state of absolute slavery ; and
in the other, tlie contract contoina merely the term, the ransom, and
the intention . — Shurayay p. 320.
270 INHEBITANCB.
prodaced any portion ; whereas if born alive, though death should
ensue immediately after its birth, its share belongs to its
own heirs. If miscarriage is produced by violence, regard
is to be had to any motion which may be exhibited by the
child, whether it be such as cannot proceed except from a
living being, or is merely a quivering “ of the limbs, which
sometimes takes place involuntarily after death, and the
child is to be pronounced as having been bom alive or dead
accordingly.
Debt ex- Fourth, When a person has died involved in debt to
the full amount of his property, it is not to bo transferred
inheritance to his heir, but remains subject to the samo conditions as
Mhl it IS jf belonged to him. If the debts should not absorb
the whole of his estate, so much of it as is required for the
payment of his debts remains subject to the same con-
ditions, while the surplus is to be transferred to his heirs.
Section Thied.
Exclusion from Inherhatice.
Entire or Exclusion is either from the whole inheritance or from
a part of one’s share. With regard to the first, the rule of
respect is to bo paid to nearness of blood to the
cxclndcs deceased. Thus the child of a child cannot inherit with a
rem^!* child, whether male or^female, in so much that there is no
llloatrar inheritance for a son’s son, when there is only a daughter ;
whilst, when there are several children’s children together,
the neater of them always excludes the more remote.
Further, a child excludes all persons who are related to the
deceased through his parents, or one of them, — as brothers
and sisters and their children, grandfathers and their
parents, paternal and maternal uncles and aunts and their
children; and none can participate with children in the
* inheritance, except the immediate parents of the deceased
and a husband or wife.
Continned. Upon failure of parents and children of the deceased,
brothers and grand&thers succeed, a brother excluding the
Arab. TukuUoo*.
INTBODUCTOEY.
•271
child of a brother, and when there are several generations
together, in different degrees of descent, the nearer is
always preferred to the more remote. Further, brothers
and sisters and their children, however remote, exclude all
those who are related through grandfathers — as paternal
and maternal uncles and their children — but do not exclude
the parents of these grandfathers, for a grandfather, how
high soever, is always a grandfather, though when there
are several generations together, in different degrees of
ascent, the lowest in descent, or nearest to the deceased, is
always preferred 'to the more remote.
Uncles, paternal or maternal, and their children, how Continued,
low soever, exclude the j^atcrnal and maternal uncles of
the father, and, in like manner, the children of tho father’s
paternal or maternal uncles exclude tho paternal and
maternal uncles of the grandfather.
Further, a person who is related to the deceased by the Full kins-
father only is excluded by one who is related to him by dSc*;tolf
both father and mother, provided they are equal in class by father
and degree. ’
Lastly, a relation by blood, however remote, excludes and any
an emancipator ; and, in like manner, an emancipator, or
his representative in the inheritance of tho freedman, is cludea an
preferred to tho surety for offences, and tho surety foi'p™””*
offences is preferred to tho Imtim. ^
Partial exclusion, or the diminution of a share, is of two Partial
kinds: exclusion by a child, and exclusion by brothers
and sisters. A child, how low soever, and whettier male
or female, excludes the parents of the deceased &om more shares of
than two-sixths of the estate, except in the case where, with ^
one daughter or two or more daughters, there is only one
parent : and reduces the husband or wife from the highest
to tho lowest share appointed for them respectively. Here bo in three
it may be observed that there are three states in which a ***'***•
husband or wife may be with reference to the inheritance.
First, there may he a child in any degree of descent, and
in that case the share of the huAond is a fourth, and that
of a wife an eighth. Second, there may be neither a child
nor any descendant of a child, and then the husband’s
272
INHERITANCE.
share is a half, and the wife’s a fourth ; and these shares
caij never be reduced by awl or increasing the divisor,
as atvl is not recognized by us. Thirdly, there may bo
neither an heir by blood nor any other by special connec-
tion, and in that event a husband has his half and the
remainder by virtue of the return or reversionary right,
while the widow is restricted to her fourth. Upon this
point, however, there arc three different opinions. Accord-
ing to one of these, she takes the remainder by virtue of
reversionary right ; according to another it never reverts to
her ; while according to the third opinion, it reverts to her
on failure, that is during the absence of the but
not if he is present. The right doctrine, however, is that
it never reverts to her.
Brothers With regard to exclusion by brothers and sisters, they
r^uce* the a mother’s share from exceeding a sixth of the
mother’s inheritance upon four conditions.
sixth, upon That they consist of two or more males, or one
diSoM*^" male and two females, or four females.
%i(L That they be neither infidels nor slaves. Whether
a murderer would exclude is liable to doubt ; but according
to the most prevalent doctrine he would not.
8rcZ. That the father of the deceased be in existence.
4t&. That the brothers or sisters themselves be either of
the full blood, that is, connected with the deceased by both
parents, or be of the half blood on the father’s side ; as
also, according to the best founded opinion, that they exist
separate ‘from the mother, not in her womb. Further,
the children of brothers and sisters have no effect in
excluding the mother or reducing her share ; nor of her-
maphrodites have less than four any such effect, from the
possibility of their all being females.
“ By all the followers of Uie twelve Imams, Imam Muiiudy, their
twelfth and last spiritual as well as temporal leader, is believed to bo
still living, but to have retired from human observation since his last
appearance on earth.” — Im. D\ note p. 142.
INTBODUCTOBY.
273
Section Poubth.
Shares and their Coinhinatioiis.
Tho shares are six in number ; a half, a fourth, and Shares ami
an eighth, two-thirds, one-third, and a sixth. A half is
tho share of a husband when there is no child nor ^^^cyaro
descendant of a child how low soever, of a single daughter
and of a single sister .ofiuU blood, or of half oa the father’s
sid^x A fourth is the share of a husband when there is
a^hild or descendant of a child how low soever, and of
a widow when there is none of these. And an eighth is the
share o^ tho widow when there is a child or descondant-of -
a child how low soever.^- Two-thirds are the share of two
. or more daughters, and of two or more sisters of tho full
hlood, or half blood on tho father’s side, A third is tlio
share of tho mother when there is no child nor descendant
of a child, nor two brothers or sisters, to exclude or reduce
her share in manner before mentioned, and of two or more
children of tho mother only, that is, half brothers or sisters
of tho deceased on the mother’s side. And a sixth is tho
share of each one of the immediate parents of tho deceased .
when ho has left a child or descendant of a child how low
soever ; and of his mother when ho has left full brothers
or sisters or half brothers or sistc?s on the father’s side,
the father himself being also in existence; and also the
share of a single child of tho mother only, that js a half
brother of the deceased on her side, whether tho child bo
male or female.
Of the above-mentioned shares, some are susceptible
of combinations with others, and some are not. Thus, a
half may be combined with its like, and with a fourth and
an eighth ; but it does not combine with two-thirds, on ,
account of the nullity of the doctrine of the awl, the
deficiency in case of such a concurrence falling entirely on
tho two or more sisters, to the entire immunity of the
— '• - — ■ i , ... j
** When there is more than one wife, the fourth or eighth, as the
case may be, is divisible among them equally. — Post, p. 304.
PART II. • T
274
IMHEBITANCE.
husband. The half may also be combined with a third
and with 'a sixth. A fourth and an eighth do not com-
bine ; but a fourth may be combined with two-thirds, one-
third, and a sixth. An eighth combines with two-thirds
and a sixth ; but does not combine with a third. A
third does not combine with a sixth by name.**
Vmhat, or Connected with this subject of shares and their com-
tlvef bination, are the two following rules : — First. There is no
equal in room with US for succession by taaseeb or lineal right ** so
long as there is any right by fureezut or appointment of
takyho Bhorcs ; so that, when there is an equal in the case, but
one who has himself no share, he takes the surplus after
the others have had their portions, by virtue of kurabnt, or
nearness of relationship to the deceased. Thus, suppose
that there are both parents and a husband or wife. Here,
the mother has a third of the estate, the husband or wife
his or her share, and the father** the surplus ,* and, if there
were brothers also who would reduce the mother’s share
to a sixth (without deriving any benefit themselves), sho
would have that share, the husband a half, and the father
the remainder. So also in the case of both parents, a
son, and a husband, or of a husband and two half brothers
on the mother’s side, and a full brother or sister, or half
on the father’s side. Further, if the lineal relative be
remote, he has no pqrtion in tho inheritance, and the
surplus reverts to tho sharers, with exception of the
husband and wife ; as, for instance, when there are both
parents, or one of them and a daughter and a brother or
paternal uncle.
The Awl Secondly. The awl is null or not recognized with us.
The occasion for it arises only in consequence , of conflict
Sheeaht. between the claim of a husband or wife with tho claims of
the other heirs, and in cases of that kind the loss fidls
'* For examples of the above combinations, see post, p. S82.
“ That is, for the succession of Ujmbat, as . such, according to
the Hanifites. <
'* The father, thon^ sometimes a sharer, is here only a real-
dnary, his share being merged in the residue.
INTRODUCTORY.
276
upon the father, or the daughter or daughters, nr a sister
or sisters related by both parents, or on the father’s side
only, to the exception of those who are related only
through the mother ; as, for instance, when the deceased
has left a husband, both parents, and a daughter, or a
husband, one parent, and two or more daughters, or a
widow, both parents, and two daughters, or a husband
with relatives on the mother’s side, and a sister or sisters
by father and mother or by the father only.'^
So in tlio original ; but in pp. 2GS, 805, the deficiency is said to
fall only on the daughters, or sisters by full or half-blood, without
any mention of the father.
These cases will be found on p. 300.
276
INHERITANCE.
CHAPTER II.
OF INHERITANCE BY NUSUB OR CONSANGUINITY.
Three
classes :
Class
First,
Parents
and
children.
Parents
This comprises three classes or series of persons. The
first class comprehends the fatlier and mother of the
deceased and his children.
If the father be alone, tho whole property is his;
and if tho mother be alone, a third of tho property is
hers in right of her share, and tho remainder by virtue
when there of tho rctom or reversionary right. If tho deceased has
children, left both his parents and no children, his mother has a
third, and his father tho remainder. But if there are also
brethren of the deceased, tho share of tho mother is
reduced to a sixth, and the father has the remainder,
while the brethren have nothing.
Children If the son be alone, the whole properly is his ; and if
nro'no****" ®’^® “®’^® ®“®» ** divided equally among
them. If a daughter be alone, half tho property is hers
in right of her share, and the remainder by virtue of tho
return. If there are two or more daughters, they have
two-thirds as their share, and the remainder by the return.
When there are children of both sexes, the pprtion of each
male is double that of a female.
When parents are combined with children, or when
one parent is combined with children, each parent or the
single parent, as the case may be, has a sixth, and tho
children have tho remainder equally if they are all males,
and if there is a female or females among them, each male
With *4 l^AB 1^^ portions of two females. And if Uie deceased has
tu^ondorleft a husband wife with parents and children, the
husband or wife takes the lowest share appointed for them
ore no
parents.
Parents
and
children
together.
INHERITANCE BY NUSOB OR CONSANGUINITY. 277
respectively, and the parents in like manner, and the
remainder goes to the children. When with the parents
there is only one daughter, the parents have two-sixths, the
daughter a half, and the remainder reverts to them all in
fifths.^ But if there he also brethren of the deceased on
the father’s side, the remainder reverts to the father and
daughter in fourths." If there is a husband with the
parents and daughter, the husband takes the smallest
share to which he is entitled ; so also do the parents, and
the daughter has the remainder." While, if for the
husband we substitute a wife, each sharer takes bis or her
share, and the remainder reverts to the parents and daughter,
to the exclusion of the wife. But if there were brethren,
the remainder would revert to the daughter and the father
in fourths." If there is only one of the parents with a
daughter, the property" belongs to them both in fourths ;
and if there is a husband or wife with them, the surplus
reverts to the daughter and the single parent, to the
exclusion of the husband or wife. When there are two or
more daughters, the parents have two-sixths, and the two
or more daughters two-thirds equally divided among them.
If to these wo suppose a husband or wife to bo added, he
or she would take the lowest share appointed for them
respectively, the parents would have two-sixths, and the
two or more daughters the remainder ; while, if there is
only one parent, ho or she would have a sixth, the two or
more daughters have two-thirds, and the remainder reverts
to them in fifths ; and if there were a husband also, the
deficiency would fall on the two or more daughters. If
' That is, one-fifth of it to oocli parent, and tlireo-fifths to the
daughter.
* One to the father and three to the daughters, in proportion to
thdr oiigiiud Bhares.
* Here there is a deficiency of one-twelfth, which falls en the
daughter.— See ante, p. 2C3.
" Because brethren reduce the mother to a sixth.— ante,
p. 372.
* Arab. Mat: Here it matters not whether the whole property
or the remainder be mentioned, for they ore divisible in the same
proportions.
278
INHEBITANCE!.
Chi1(1ran*s
chilli rcn
represent
their
})arent8;
bat fire
excluded
liy imme-
diate
children,
and the
nearer
genera-
tions of
them cx-
clndc the
more
remote.
again there were a widow, she would have her share,
which would he an eighth, and the remainder would pass
to the single parent and the daughters, in fifths. But if
there is a husband with both parents, he would have a
half, the mother a third of the original estate, and the
father the remainder ; while, if wo suppose brethren to be
added to these, the mother’s shore would be only a sixth,
while the father would still have the remainder. If witli
both parents there is a widow, she has a fourth, the
mother a third of the original, if there are no brethren,
or a sixth if there are, and the father the remainder.
Miscellaneous Cases.
First. When there are no immediate children of the
deceased, the children of his children represent their own
parents, dividing the property with the immediate parents of
the deceased. It seems to have been once made a condition
of the succession of children’s children that there should be
a failure of both the parents of the deceased; bnt this opinion
is now exploded, and has been abandoned. But children
prevent the succession of every one connected with the
deceased through them, and also of every one connected
with him through his parents, as his brethren and their
children, his grandparents and more remote ancestors, and
his paternal and maternal uncles and their children.
And all the descendants of the deceased are so arranged
that the nearest to him is nearest also in succession to his
property; 'so that one generation does not inherit with
another that is nearer than it to the deceased, and each
person inherits the portion of the person through whom
he is connected with the deceased. Hence, the child,
whether mole or female, of a daughter inherits hsr portion
(which is a h^f if sho was alone or in conjunction with
both'-parents), and the remainder reverts to such child in
the same way as it would have done to her mother if she
were alive ; and the child, whether male or female, of a
son inherits thp whole property if he was alone, and the
surplnsj after deducting the shares of otlier heirs, if there
were any in conjunction with him, as, for instance,
INHEBITAHCE BY NtlSUB OB CONSANOUINITY. 279
parents, or one of thorn, and a husband or wife. If there
ore only children of a son and children of a daughter, the
former take two-thifds of the property, and the latter one-
third, according to the best-founded doctrine. And if the
deceased should have left a husband or wife, he or sho
would take the lowest share appointed for them respect-
ively, while of the remainder, a third would pass to the
children of the daughter, and two-thirds to the children of
the son.
Second, In the division of a daughter’s share among Children of
her children a male takes the portion of two females, in
the same way as in the division of a son’s share among his the pro-
children. But it has been said that a daughter’s children
share her portion equally. This opinion, however, is now to a malo
abandoned.
Third. The follotving things are to bo giyen to the Primo-
eldcst child ef the deceased out of his property, viz. his body
clothes, his ring, his sword and his Koran ; and he is liable recognized,
for the payment or fulhlmeut of his unperformed prayers
and fasts. Among the conditions of his right to these
things it is required that he be neither a prodigal, nor
deficient in understanding according to the approved opinion, .
and that the deceased should have left some other property
besides them ; for if he has not, the eldest child has no
special right to them. And if the eldest child be a female,
they are to be given to the eldest male.
Fourth. The grandfather and grandmother have no Grand-
right to any part of the deceased’s estate when he fs survived
by cither of his immediate parents ; but it is proper and maintained
becoming that a sixth of the original property should be
bestowed on them when the parent’s own portion exceeds immediate
that amount ; as for instance, when the deceased has left
both parents, with a paternal and maternal grandfather and
grandmother, his mother, having a third of the q)roperty,
should bestow a half of her portion on his grandfather and
grandmother equally, or if there is only one 'of them give
the whole of the half to that one ; and the father having
two-thirds should bestow a sixth of the original property
on the grandfather and grandmother equally, or if there is
280
INHEBITANCE.
only ono of them give tho whole of the sixth to that one.
If one of the parents should obtain only a sixth of the
inheritance and no more, while the other obtains a sixth
and something in excess of it, tho duty of maintaining
tho grandparents falls upon the latter to tho exclusion of
tho former. And, if the deceased has left both parents and
brethren, tho maintenance of the grandparents is incum-
bent on the father alone and not on the mother; while if
the deceased is survived by both parents and a husband,
the duty of maintaining the grandparents falls on the
mother exclusively of the father. The paternal grand&ther
and paternal grandmother have no claim to maintenance
except in the case of tho deceased being survived by his
father, nor the maternal grandfather or maternal grand-
mother any claim to maintenance except in tho case of
the dcceaspd being survived by his mother.
Class ^ho second class of consanguineous heirs comprehends
Brath^ brethren and grandparents.
and i^rand- When a full brother stands alone without any other
imrents. heirs, hc has the whole property. When there is another
brothen brother or brothers with him, the property is equally
and sisters, divided amongst them. If among the brethren there is a
female or females, each male takes two portions and each
female one portion. If there is a full sister and no other
heirs, she takes a half the property as her share, and the
remainder reverts to her by tho return ; while if there are
two or more full sisters alone, they take two-thirds of tho
property in the first instance, and the remainder reverts to
them in like manner.
Half When there are no full brothers or sisters, the half-
an^risten sisters OH the father’s side come into their
on tha place. And the rule for them, when single or several, is
aide*’'’* applicable to the full brothers and sisters in
likeb circumstances. No brother or sister on the father’s
side only con inherit with a full brother or sister, by reason
of the union of two causes of inheritance in the latter.
On the When a child of the mother only, that is, a half-brother
y^i* **^* or sister of the deceased on her side, stands alone wii^ont
any otiier heir, the child, whether male or female, takes a
INUEIUTANCE BY NUSCB OB COESANOUINITY. 281
sixth first, and then the remainder by the return ; and if
there are two or more such children, they take a third
equally divided among them, whether they be males or
females, or males and females.
If tliere are brethren of different kinds, those con- Fall
nected by the mother only take a sixth if there is only one
such, or a third if there arc two or more, the third being the father’s
equally divided among them in that case ; and thoso con- on*0ie
nected by father and mother take two-thirds, whether mother’s
there be one or more ; but if there is only one, and that
one a female, she has a half of the two-thirds by appoint-
ment, and the remainder by the return ; while if there are
two or more, and they are females, they take two-thirds
by appointment, and the surplus, if any,° by the return.
Again, if those connected by the father be males, the
remainder, after satisfying the portions of those connected
by the mother only, belongs to them equally; while if
there are both males and females, the division among them
is in the proportion of two shares to each male, and one
share to each female.
The grandfather when alone takes the whole property, Graml-
whethor he bo on the father’s or mother’s side. So also P®*”*®*
the grandmother. And if there is a grandfather or grand-
mother, or both, on the mother’s side, together with a
grandfather or grandmother, or both, on the father’s side,
those connected through the mother take a third in equal
portions, and thoso connected by the father take two-thirds
in the proportion of two parts to a male and one part to a
female.
When a maternal grandfisither and grandmother, or one Grand-
of them, is combined with half-brethren on the mother’s
side, the grandfather is as a brother and the grandmother brothers or
as a sister, and the mother’s third is divided among them
all equally. And in like manner, when a patefnal grand-
father and gra dmother, or one of them, is combined with
a sister, or two or more sisters, by father and. mother, or
by the father’s side only, the grandfather i%as ^e b(ro1her,
* As there would be with only one half brother or wster.
282
INHEBITANCE.
and the grandmother as the sister, and the remainder,
after satisfying the relatives connected by the mother, is
divided among them in the proportion of two parts to the
male for one pBrt to the female.
Husband The husband and wife take the largest shares appointed
for them respectively, when they are combined with brethren,
brethren, whether the brethren agree or differ -as to the side of their
connection with the deceased ; those on the mother’s side
taking their appointed portions of the original estate, and
the surplus passing to those connected by father and
mother, or failing them, to those connected through the
father only. The deficiency, if any, falls on the portions
of the full brethren or of those connected only by the
father ; as when the deceased has left a husband with a
half-brother or sister on the mother’s side, and a full
sister ; and if there is a surplus, as when there is only
one on the mother’s side and a sister by both father and
mother, the surplus goes to her alone. But if instead of a
sister by both father and mother there were a sister by the
father only, would she also havo this special right to tho
surplus after satisfying the shares? The question has
been answered in the affirmative, because the deficiency,
if there is any, by reason of the contending claims of a
husband or wife, falls upon her, and also by reason of
what is reported from /l^oo Jaafer, on whom be peace, in
tlie case of the son of a half-sister by the father and the
son of a half-sister by the mother, in which ho said, ** A
sixth to ‘the son of the sister by the mother, and tho
remainder to the son of the sister by the father.” But tho
report is weak, and it has also been maintained that
the surplus should revert to those connected through tho
mother, and to tho sister or sisters on the fhther’s side, in
fourths or fifths, as there may be one or more of them, on
account of the equality of degree; and this opinion is.
preferred.
MisceUaneouB Cases*
OrcaW t
irrand- First. A grandfather though remote participates with
brethren when there is none lower than him or nearer to
INHEBITANCB BV NTTSTTB OB CONSANGUINITY. 283
the deceased : but if there are grandfathers in different with
degrees of ascent in combination with brethren, the lower
participate and the higher are excluded. are no
Second. When the deceased has left a paternal grand*
father and grandmother of his father, and a maternal Great-
grandfather and grandmother of his father, and the like gwwd-
uf bis mother, her grandparents have a third of the pro-
perty in fourths, and the grandparents of the father have
two-thirds of it between them in thirds, two of these being
for his grandparents on the father’s side in the proportion
of two parts to a male and one to a female, and the other
of them being for his grandparents on the mother’s side,
according to what has been reported by the Shaikh,
on whom may God have mercy. So that the original
number of shares, or three, has to be divided among two
classes, and four must be multiplied by nine, and the
product, or thirty-six, again multiplied by three, which
will give one hundred and eight as the number of parts
into which the estate must be divided in order to give
the several parties their respective poilions without a
fraction.’'
Third. When there is a half brother by the mother, A half-
and the son of a full brother, the former has the whole of^J^^rthi,
the inheritance because ho is nearer to the deceased. But
Ibn Shazan maintains that he ought to have only a sixth, brown’s
and the son of the full brother the remainder, by reason ‘x’"*
of the junction of two causes of inheritance in his case.
The reason, however, is weak, for the rule Avith regard to
the junction of several causes has effect only when occom-
’ The 108 parts are tlius apportioned Ono-tliird, or thirty-six
parts, to tlie grandparents of the mother (being nine to each of the
four), and two-thirds, or seventy-two parts, to those of the father.
Of these seventy-two, one-third, or twenty-four, go to*tlie fiithor’s
grandparents on the motlier's side, among whom, being equally
divided, they (^ve twelve to each ; and two-thirds, or forty-eight, go
to his grandparents on the father’s side, but must further be divided
between them, giving two-thirds, or thirty-t^vo, to 'the grand&ther,
and sixteen to the grandmother. If these are all collected, it will be
found tliat they make the exact sum of 108.
284
INHEBITAMCE.
panied with equality of degree,’ and does not operate when
the degrees differ.
Brothers Fourth. On failure of brothers and sisters their chil-
repnwn^^™® come into their places, and each one among them
c^ildre"^ inherits the portioq of the person through whom he is
® ‘ **“' connected with the deceased. If thero bo only one, he
takes the whole of the portion, or if thero be several and
they are all males or all females, they take the portion
equally between them; but if they ore partly male and
partly female, the division between them is in the propor-
tion, of two shares to a male for one to a female, unless
they are children of half-brethren on the mother’s side,
when the division among them is also equal. And the
children of a brother toko the remainder, like their father ;
the children of a full sister take a half, that is, the share
of their mother, but take nothing by way of return ; and
the children of two or more sisters have two-thirds, except
when there is a deficiency of property by reason of the
concurrence of a husband or wife, when they have the
remainder, as happens to those who are connected with
the deceased through his father.
And on If there are no children of full brethren the children of
childiw’^ half-brethren by the father come into their place ; and the
of full children of a ^If-brothcr or sister on the mother’s side
® if ^here are children of both they have
half on the a third, each set taking the share of the person through
lid^come approach to tho deceased, and dividing it
into their among themselves equally. If there are children of
jdace. brethren of different kinds, the children of half-brethren
on the mother’s side take a third, and the children of full
brethren take two-thirds, while the children of half-brethren
by the father are entirely excluded. If in combination
with them there is a husband or wife, those take respectively
thoiargest share appointed for them ; and those connected
through the mother only take a third if they are more than
one, or a sixlh if only one, and the remainder goes to the
full brethren whether it be more or less, or, failing them,
• See p. 382.
INHEUmNCB BY MUSUB OB CONSANOOINITY. 285
to the children of brethren connected through the father
only, though as to the more there is some doubt, as has
been already said. And if grandfathers are combined with
them, they divide the estate with them, as they do with
brethren, as already explained.
The tliird class of consanguineous heirs are the classihird:
paternal and maternal uncles and aunts of the deceased.
A paternal uncle, when he stands alone without other paternal
heirs, inherits the whole property. So also do two or
more such uncles in the like circumstances, dividing it
equally among them. The same is true with regard to
one or more paternal aunt or aunts. When there are
paternal uncles and aunts together, each male has the
portion of two females. When they are of different kinds,
the half paternal uncle or aunt on the motlier’s side has
a sixth, or if there is more than one, a third, males and
females taking equally, and the remainder goes to tho full
paternal uncle or undos, and aunt or aunts, in tho pro- '
portion of two shares to a male for one to a female ; half
paternal uncles and aunts on tho father’s side being entirely
excluded by full paternal uncles and aunts, and coming
into their place when there arc none.
The son of a paternal uncle docs not inherit with a Paternal
paternal uncle, nor any one who is more remote from the
deceased inherit with one who is riparor to him, except in son of one.
ono case, which is that of the son of a full paternal uncle
with a half paternal uncle on the father’s side, when the
former is preferred while the case remains exactly so; but
if it is changed by the addition of a maternal uncle the son
of tho paternal uncle is excluded.
A maternal uncle when he stands alone without other Maternal
heirs has the whole property. So also have two or more
maternal uncles ; and in like manner a maternal aunt, or
two or more maternal aunts. When there? are hoth
Tnfttflma.1 uncles and aunts, there is no distinction in
favour of the male sex and aU share alike. But if they are
of different kinds, those connected through ^e mother only
have a sixth if single, or a third if there (ure several of them,
nudes and females sharing alike, and the remainder passes
286
ntHEBlTANCE.
to tho fall maternal uncles and aunts in the proportion of
two parts to a male and ono to a female ; the half maternal
uncles and aunts on the father’s side being excluded by
them or coming into their place when there are none.
Paternal If there are both paternal and maternal uncles or aunts,
the matemals take a third, oven if there is only one of
uncles and them, and whether male or female, and tho patemals two*
btoea.**”*' thirds, even though there is only one of them, and whether
ibale or female. If the matemals are of one kind, a male
has tho portion of two females. But if they are of different
kinds, those connected by the mother only take a sixth of
the third if single, or a third of it if there are more than
one in equal shares, and the remainder of the third goes to
those among them who are connected by both father and
mother, and the patemals take tho remaining two-thirds,
in the proportion of two parts to a male for ono to a female,
if they be all on the same side ; and if they bo of different
sides, then those connected by the same mother only take
a sixth if single, or a third if two or more equally between
them ; and the remainder of the two-thirds goes to the full
paternal uncles, in the proportion of two parts to a male
for one to a female ; and those of them who are connected
by the father only are entirely excluded except on fiulure
of those connected through both father and mother.
Paternal When a paternal and maternal uncle and aunt of the
mtenml ^ paternal and maternal uncle and aunt of
grand the mother are combined, it is said, in the Nihayah, that
a^to cm- connected through the mother only have a third
bined. equally between them ; and those connected through the
father have two-thirds, one being for his maternal uncle
and aunt equally, and two-thirds for his paternal uncle and
aunt in the proportion of two parts to a male for one to a
female ; so that tho original number of shares, or three,
< being diviAble among two classes, four must be multiplied
by nine, and the product, or thirty-six, again multiplied
by three, which will give one hundred and eight, as (he
, number of parts into which the estate must be divided to
give the several parties entitled their respective’ poi^bhs
without a fraction.
INHEBITANCB 13T NUStJB Olt CONB^QUINITY. 287
MisceUaiicom Cases.
Pint. Paternal uncles and aunts of the deceased Uncles and
and their children, how low soever, and maternal uncles their
and aunts of the deceased and their children, how children
low soever, have a better right to .his succession than
the paternal and maternal uncles and aunts of his ancles and
father, and the paternal and maternal uncles and aunts
of his mother, because his own uncles and aunts are
nearer to him in degree, and their children come into
their places. When there is a failure of full paternal
and maternal uncles and aunts of the deceased and of
their children, how low soever, the paternal and maternal
uncles and aunts of his father, and the paternal and
maternal uncles and aunts of his mother and their
children, how low soever, come into their places ; and so
on to other ascending generations, the lower generation
being always preferred to the higher.
Second. The children of uncles and aunts on different Children
sides take the shares of their parents ; so that the sons of of
a half paternal uncle on the mother’s side take a sixth ; tboir
and if there are eons of two such uncles, they take a third,,
while the sons of the full paternal uncle and aunt have
the remainder. And the same rule is applicable to the
sons of maternal uncles and aunts.*
Third. When two causes of inheritance combine in the When two
same person, he inherits by virtue of both, if one of ' them
does not counteract or impede the operation of iihe other; one person
as in the case of a son of a half paternal uncle on the
father’s side, who is also the son of a half maternal uncle both,
on the mother’s side, or the son of a paternal uncle who
is also the husband, or the daughter of a paternal uncle
who is also the wife, or ft half paternal aunt on the father’s
side who is also a half maternal aunt on the mdther’s«eide.
If one of the causes is an impediment to the operation of
the other, the person in whom they combinb inherits by
virtue of the impeding cause, as in the cas% of the son of a
patfemal uncle who is also a brother, and ii^erits by virtue
of hrotherhood alonet
288
INHERITANCE.
Husband Fourth. When there is a husband or wife with maternal
coi^fned aunts and paternal uncles and aunts, the hus-
witb uncles band or wife takes the highest share appointed for them
have^Adr respectively, and those connected by the mother have their
highest original share of the inheritance, while the remainder goes
® to those who are connected both by father and mother ;
or failing them, to those connected through the father only.
Cliildrenof Fifth. The rule for the children of maternal uncles and
^de™and combining with the husband or wife is the same as
aunts when the rule for the uncles and aunts themselves in that com-
bination. Thus, if there is a husband or wife with sons of
husband or a maternal uncle, and also sons of a paternal uncle, the
Ui^same^ husband or wife takes his or her appointed share, and the
ruleastheir sons of the maternal undo have a third of the original
parents. while the remainder passes to the sons of the
paternal uncle.
( 289 )
CHAPTEE III.*
OF THE ACKNOWLEDGMENT OF NUSDB.
This comprehends the following cases : —
First. The acknowledgment of a yonng child’s niisuh
is not established' unless tho sunship ho possible, the child necessary
unlmown, and there is no one who disputes it with tho
acknowledger. The acknowledgment is restricted by these knowlccig-
threo conditions, so that, if the person acknowledged be “
older than tho acknowledger, or his equal in age, or only child,
so much younger than him that tho difference between
their ages is less than is usual between parent and child,
tho acknowledgment cannot bo accepted. So, also, if one
should acknowledge tho child of a woman belonging to
him, between whom and himself there has been such a'
distance as to preclude his having access to her during tho
like of tho child’s age,® or if tho child bo of known nusiih,
tho acknowledgment cannot bo accepted. In like manner,
if there is any one who disputes tho sonship of the child
with the acknowledger, the acknowledgment cannot bo
received without proof. The assent of a yonng child is
of no importance. But should not some regard bo had portance.
to the assent of tho person acknowledged when ho is
adult ? Apparently not, according to what the Sheikh has .
said in the Nihayah, but otherwise, according to what he
has said in the Mvhsoot, and is most agreeai)lo to tho person
general principles of the law. So that, if the adult should
. adult.
' Tills short chapter has been introduced hero from the Book of
Ikrar, or acknowledgment — Shuraya, p. 376. ,
* Oomr. The words which I have translated literally seem to *
indicate access, at or about the time of the child's conception.
PAST lu n •
290
INHliilUXANCK.
And assent dony the nmub, it is uot ostablishod. And it is quite clear
that the 7iimib of any other than a child cannot be esta-
acknow- blishcd by acknowledgment, without the assent or concur-
e^tlalin person in whose favour it is made. When
the of the acknowledgment is of any other than a child of the
re^tion" loins, and the acknowledger has no other heirs, and the
person acknowledged has assented to the truth of the
acknowledgment, mutual rights of inheritance are esta-
blished between the pai-tics ; so, however, as not to affect
the rights of others than themselves. And if the acknow-
ledger has any known heirs, his acknowledgment cf msub
is not to be accepted.
Second. When a person has acknowledged a young
child as his offspring, and the nit sub is established, but is
subsequently denied by the child on his attaining to
puberty, no regard can be had to his denial, because the
nusub had already been established previously to it.'
Third. When the child of a deceased person has
acknowledged another to be his child also, and the two
pereon concur in acknowledging a third, the nusub of the
acknow- third is established, provided that the two first are just or
fmo^r to ^Rhtcous persons ; but if the third should deny the second,
iw his the numth of the second would not be established, and the
they both would take half the estate, the first a third, and the
acknow- second a sixUi, being ^e complement of the share of the
first. If, again, the two first were of known nusiih, and
should both acknowledgo the third, his nusub would bo
ostablishbd, provided the two were just or righteous per-
sons ; and though the third should deny the nusub of either
of the other two, no regard should bo had to his denial,
and the estate of the deceased must be divided among
- them all in thirds.
An heir to Fourth. If a deceased person has left brothers and
a deceased q the wife acknowledges a child to bo his, her
acknow- share of the estate is only an eighth ; and if the brother
am^r to assedt to her acknowledgment, the whole of the
Acknow-
ledgment
not de-
feated by
chUd’s
denial on
attaining
puberty.
If the child
of a
deceased
ledge a
third, his
Tiusult is
esta-
blished.
^ Tliifl reason would apply equally to a subsequent denial by the
acknowledger himself.
THE ACKNOWLEDGMENT OP NUSUll.
291
remainder would go to the child, to their own entire bo nearer
exclusion. In like manner, every one who is in appearance decora
an heir, and acknowledges another person to bo nearer to must sur-
tho deceased than himself, must surrender to such person 'to
the whole of whatever may bo in his hands that belonged bim.
to the deceased. Hut if the person acknowledged is equal
in degree to himself, ho has only to surrender out of his
own share a due proportion for the share of the person so
acknowledged. If the brothers in the supposed case
should deny the person acknowledged by the wife, they
would take three-fourths of the property, and the remainder
of her share would go to the child.
Fifth. When a youth‘ of unknown uusub has died, and Acknow-
a person acknowledges him to have been his son, the msub
is established, whether ho were of tender ago or more dcccosert
advanced,' and whether ho has loft any property or not.
Accordingly, his inheritance belongs to the acknowledger ;
and the case is not affected by any suspicion that may ^know-
attach to his motives in such circumstances, as it would bo
if the person were alive and had property. In the case of heritage,
a deceased person, tho absence of assent is of no import-
ance, even though he were adult, for, being dead, ho
comes within tho moaning of tho case of a little child.
So also, if a person should acknowledge an insane person
to bo his son, tho absence of bis assent is of no conse-
quence, as no regard can be had to the words uttered by a
person in such circumstances.
Sixth. When a female slave has borne a child, and her Case of on
master acknowledges tho child to bo his son, it is affiliated icdgmcnt
to him, and adjudged to bo free, provided that tho woman
has no husband. And if a man should acknowledge as childof one
his son the child of one of his slaves, particularizing tho'
child, he is in like manner to be affiliated to tho acknow- slaves,
ledger ; and if another of his slaves should allege that it
was her child which he acknowledged, tho question is to
be determined by the word and oath of tho acknowledger.
^ Snliee, • .
* Tho word in tlio origiiinl is iitlwer ; but its usual moaniug,
adult, is inconsistent mth his being a lubee.
292
IKHEBITANCE.
If he should die without particularising the child, the
Sheikh has said that the heir should specify some one in
particular, and that, if ho should refuse to do so, the
question must bo determined by casting lots. But it were
better to say tlmt recourse should bo had to lots absolutely,
that is, without any such distinction, when tho acknow-
ledger himself has died without particularizing the child.
When the Seventh. If a person having three children by a slave
several** should acknowledge one of them to be his son, then,
childrcu whichever of them ho may particularize as the one in-
acknow- tended, would be free, and the others be slaves ; and if
Icdgmcnt there should be any doubt as to tho individual particn-
«)no olf *** larizcd, or the acknowledger should die without particu-
tbem. larizing any of them, the individual must be determined
by casting lots.
Tiro male Eighth. Tho testimony of two just or righteous men is
witness^ required for the establishment of a case of nustib. Tho
reqnired to . * . , , . ......
establish a testimony of one man and two women is not sufficient
for the purpose according to the most approved opinion.
Nor can it be established by the testimony of one man and
an oath; nor by tho testimony of two profligates, even.
Testimony though they should be heirs to tho deceased,
brothcra of If *"'0 brothers, being just persons, should
a deceased testify to another being a son of the deceased, his ntmib
ja^r ofa ^ inheritance would be established, but there
child would be no reciprocity ; and if the brothers are profli-
^taufsb though his nusiib would not bo established, he would
its nustA. still have d right to tho inheritance in preference to them.
Aeknow- Tenth. If a person should acknowledge two heirs of a
o^dM^heir deceased person preferable to himself, and each of them
<>f a should assent for himself, their numb would not be esta-
GCCCASCd
person of blished, but they would still have a right to the inheri-
•a pref^ tance, and he must surrender to them whatever may have
able to come 'to hifi hands that belonged to tho deceased; and
doMnot though they should mutually deny as between themselves,
est^lidi that is, each deny thq right of the other, no regard is to
be hod to their ^en^t.^ If again, a persen should acknow-
him to ledge an heir preferable to himself, and then acknowledge
sarrender another preferable to them both, and tho person first
THE ACKNOWLEDGMENT OF NDSUB.
293
acknowledged Bbonld assent to or confirm the latter the pro-
acknowledgment, any property which belonged to thoj^j^ *®
deceased in the hands of the acknowledger must be sur-
rendered to the person secondly acknowledged. But if
the person first acknowledged should refuse his assent to
the second acknowledgment, the property must be surren-
dered to the person first acknowledged, and the acknow-
ledger become debtor to the person secondly acknowledged.
Where the person secondly acknowledged is equal in
degree to the person first acknowledged, and the latter has
refused his assent to the second acknowledgment, the
acknowledger must make over to the person secondly
acknowledged a similar half of what was obtained by the
first.
Eleventh, If a person should acknowledge another as An heir
the husband of a deceased woman who has left a child, he
must give up a fourth of his own share, or a half if there another
be no child, to the person so acknowledged; and if
should then acknowledge another husband, the acknow- of the
ledgment could not be received. If the person first miut give
acknowledged should negative the acknowledgment in
his favour, he would make the acknowledger debtor to porUon of
the person secondly acknowledged for a similar of what™^”®
the first acknowledger may have obtained. If again, a
person should acknowledge a wbman to be the wife of
one deceased, who has also left a child, he must give up
to her one-eighth of whatever may be in his hands, or a
fourth if there be no child. If he should now make a
similar acknowledgment in favour of another woman, he
becomes debtor to that other for a similar to half of the
portion of the first, that is, if she refuse her assent to the
second acknowledgment ; and if he should acknowledge a
third, he must give her a third of the share^; and if he
should acknowledge a fourth, he must give her a fomrth of
the wife’s share ; and if he even go so far. as to acknow-
ledge a fifth, and one of the others should deny it, no
regard is to be had to the denial so far acphe is concerned, .
and he must give to the person last acknowledged an
equivalent to the portion of one of the others. .
294
lUHEniTANCE.
CHAPTER IV.
nULKS REGARDING TUB INHERITANCE OP SPOUSES TO
EACH OTHER.
Mutual First. A wife inherits from her hnsband, though he
InhcrUanco Consummated with her; and he in like
notaffi'otcil manner inherits from her. And though she should have
tion'ff *'"* rcvocably repudiated, yet still their mutual rights of
revocable, inheritance remain if one of them dio during tho iddut.
if hre'”^ But a woman absolutely separated from her husband has no
Tocable. right to inherit from him, nor ho from her ; as for example,
a wife who has been repudiated three times, or before
consummation, or when past child-bearing, or not within
the years of menstruation, or one who has been released by
khool/i,^ or moohar<it,* or is in her iihlut after connection
under a semblance of right, or after cancellatipji* .. ...
When \ Second. A wife, when^thero is no child of tho deceased,
several /has a fo urth part of hia estate, and a n ftjgVith jf bp has left--
^nro i ^ child If there are more wives than one, they divide tho
shnre
equally.
fourth or the eighth, as tho caso may be, equally between
them.
Cose of Third. When a man has repudiated one out of four
repndiutfd ^^'i^cB,and married another, and there is a doubt as to which
nnd ^ of the first four tho repudiation applied, the last married
rnniTicd in ** fourtl^ of the eighth, and the remainder is to be
her stead, divided amongst the others equally.
Cm of Fourth. W}ien a girl under puberty has been married
mam^d by paternal grandfather, her husband inherits
theirfotbor from her, and she*from him. So also if two young children
€.
’ See nntf, p. 121).
’ Ante, p. 180.
INHEBITANCE OF SFOUSES TO EACH OTHER. 295
are married to each other by their fathers or paternal or paternal
grandfathers, they have mutual rights of inheritance. But ^^^r'
if they should be contracted in marriage by any other than By others
their fathers or paternal grandfathers, the contract remains ***““ **“*“*•
in suspense till assented to by the spouses themselves
after amving at puberty and discretion ; and if one of them
should die before such assent has been given, the contract
would bo void and there would bo no right of inheritance.
And the same would be the result though one of them
should attain to puberty and assent to the marriage, if the
other should die before puberty. But if the one who assented
should die, the share of the other ought to bo separated
from the rest of his or her estate, and kept while the other
survives, and if on attaining to puberty he or she should
reject the marriage, the contract would be void, and the
party have no right to a share in the inheritance. If, on the
other hand, the marriage were assented to, the contract
would bo valid, and the party must be sworn that the assent
has not been given from greed to partake in the deceased’s
inheritance. • t>
Fifth. When the wife has had a child by the deceased A wifo
^ ^ WllO jmS
she inherits out of all that ho has left ; and if there t^as no bad no
child she takes nothing out of the deceased’s land,® but
her share of the value of the household effects® and build- inker
ings is to be given her. It has ^een said, however, that
sho is to be excluded from nothing except the mansions
and dwellings ; while Moortuza (may God be pleased with
him) has expressed a third opinion to the effect that the
land should be valued and her share of the value assigned
to her. But the first opinion^is that which appears to be
best founded on traditional authority.
Sixth. Marriage contracted by a man in sickness isMarriago
dependent on consummation. So that if he should diejj^°^^^^
of the illness without having consummated the contract,
it is void, and the woman has no right to dower or a share
in his inheritance. This doctrine is according to a report mated,
of Zwrarvt, from one of the two on whon^be peace.
* Arab. Arz.
Arab. Aldt.
236
INHERITASCE.
CiLiPTER V.
OP nfHEniTAKCE BY WUIjA OR PATRONAGE.
Three Tnis caoso of inheritance is of three kinds, as already
mentioned '
I , — The Wuh of Emancipation.
Kmanci- The emancipator is heir to tlio freedman when the
emancipation is voluntary and gratuitous, and when the
freedman. emancipator is not freed from responsibility on account
of his offences, provided that the freedman has no con*
sanguineous heir to succeed to him. But if the slave were
emancipated as a matter of duty, ns in the case of expia-
tions or vows, the emancipator has no right to bis inherit-
ance. So also if, in making the emancipation, he stipulated
to be freed from responsibility on account of the slave’s
offences. Here a questibn arises whether it bo necessary
for security from such responsibility that witnesses should
bo called upon to attest the stipulation. It would seem
not. When the responsibility for offences is renounced
at the time of the emancipation, the slave is termed a
saibah. If the emancipated slave has a consanguineous
heir, whether he be near or remote, a sharer or otherwise,
the benefactor has no title to the succession. And if the
slave has left a husband or wife-, the spouse’s shard is to
be deducted*, and the remainder only given to the bene-
factor, or his representative in the event of his death.
Secure above conditions concur, the benefactor,
aevei^ if alonc, takes the inheritance ; or if there are several of
tmand*
Ante, p. 261 .
INnEail’ANCE BV ^VXJIlA OB PATRONAGE.
297
them, they are partners in the wula in shares,^ whether pators the
they be one . man and one woman, or there be several of
each sex. On failure of the benefactor, the tvtila belongs amongst
to his children, both male and female, according to Ebn
Babooya; and the opinion is good, and agreeable to whatemanci-
is stated in the Khilaf in •the case of a male emancipator.
Hut. according to Mofeed, the wttla belongs only to the succeed,
male children, to the exclusion of females, whether the
benefactor were male or female. While the Sheikh
has said,, in the Nihayah, that the wtda belongs to the
males, exclusively of females, if the emancipator were a
male ; and if she were female, that it belongs to her asubdt,
or paternal male kindred. And this opinion is attested or
confirmed by several traditions.
The father and mother of the emancipator participate But if he
with his children in the wnla or inheritance of his freed-
man ; but none other of his relatives share, so long as mother
there is any of these. And the children’s children come
into the place of their parents on failure of them, each ticipates.
Ufiung the share of tlio person through whom ho was con-
nected with the deceased emancipator, as in the casa of
ordinary inheritance. On failure of parents and children Then Lis
of the emancipator, his brothers succeed. But as to the *>*«^"*
right of sisters to participate in the inheritance, there is a
dificrenco of opinion, though, according to that which is
best supported by traditional authority, they ought to suc-
ceed; for wula corresponds to nusiib or consanguinity.
Grandfathers and grandmothers participate with brothers ; With his
and, on failure of all these, paternal uncles and aunts and
their chUdren, the nearer being preferred to the more fathen and
remote; while no relative connected only through his®™5i^
mother with the emancipator, such as his brethren on her
side, und his maternal uncles and aunts, or ^nd&Uiers
and grandmothers, has any title to inherit the wuUl. On
failure of relatives of the benefactor, the Moolee-al-mmold*
inherits ; and' on his failure, his relatives on the father’s
* I suppose in proportion to their original shores in the slave. *
s Emancipator of tlie emancipated. .This supposes that the
emancipator may have been an enfranchised slave. ^
298
INHERITANCE.
side snccoed, to tlie exclnsion of those related only through
the mother.
Freenmon In no case is the freedman heir to his benefactor,
hcLo'f his inheritance, if ho has left no heirs of his own,
e'manci- belongs to the Imam, to the exclusion of the freedman.
neither be sold? nor given, nor made the
ItUiu Call* ^ “I** • 1
not be sold subject oi a condition in sale,
or given.
Miscellaneous Cases.
The in- First. The inheritance of the children of an enfran-
chised female belongs to their own emancipator, though
children nf they wcrc emancipated with their mother, in the womb,
chised^"* and their wula is not shifted or transferred to her cman-
siavo cipator. But if not conceived till after her emancipation,
their would belong to the mother’s emancipator if
cmanci- tlicir father be a slave. If, however, their father were
free by origin, the wula of the children would not belong
to the emancipator of their mother ; while if their father
was an enfranchised slave, it would belong to his eman-
cipator. And in like manner if their father were eman-
cipated after their birth, their tcula would shift from the
emancipator of their mother to the emancipator of their
father.
Biuifijom Second. If a slave should marry an cnfi-anchised
rasher’s woman, and have cbildroa by her, their ictda. would belong
enfran- to their mother’s emancipator. But if tlie father were
and*thcK dead, and their grandfather were emancipated, the Sheikh
father is a g^jd that the wula would shift to the emancipator of
Siflvo find ^
alive, their the grandfather, because he is in the place of the father.
Mm » to *** manner, if the father were alive, and should
thn emanri. bo emancipated after all this, the wtila would shift from
thcmoiher grandfather to the emancipator of
' the father, because he is nearer in degree.
Third. S an enfranchised slave should deny the child
Though
were’en^ of his enfranchised wife, and the child should die without
fmo^iscii, any consanguineous heir of his own, his wula would belong
itciiy the cmancipatgr of his mother. And though the father
children, * should subsequently acknowledge the child, neither he nor
his emancipator would have any title to his inheritance ;
INHKIWTANCE'BY WDIiA OB PATBONAOE.
299
for thougli the mmih or paternity of the child revives in long's to
such a case, the father does not inherit to him, nor, con-
scquently, any one connected through him with the child, pator.
Fourth. Wula shifts from tho emancipator of the Wula '
mother to the emancipator of the father, and, failing him,
to the umihah, or lineal relative, of tho emancipator, and, mother’s
failing him, to the emancipator of the muhah of the father’s
emancipator ; and it docs not revert to the mother’s eman- cmanci-
cipator. If, then, tho emancipators and their mvhat^
should all fail, and the enfranchised slave should have loft
any ono responsihlo for his offences, such person would
take tho mda, othenvise it passes to tho Imam.
Fifth. A woman has emancipated a slave who sub- The tpula
sequently emancipates another; if tlio first should dio“^f“®„!)'“
without consanguineous heirs, his inheritance would be- chised hy
long to his emancipator; and if the second should diojjgj^^'^
without such heirs, his inheritance would belong to his the latter,
cmanciiiator ; and if ho be dead without leaving heirs
of blood, tho tvula of the second would belong to the
emancipator of tho first. And if a woman should purchase cmanci-
her father, and he becoming free in consequence should 1®*°*'*
emancipate another slave, and subsequently die, after all
which the slavo enfranchised by tho father should dio also
without any other heir besides tho woman, tho inheritance
of tho emancipated slavo would belong to her, — ^half by
name or as her shoi'c, and the remainder by virtue of tho
return, and not by tdseeh or lineal right, if wo can say that
the children of an emancipator inherit the wula, though
they be females ; but if we cannot say so, she succeeds by
virtue of tho M'uJrt.
Sixth. If a slave should beget two daughters onThein-
an enfranchised woman, and they^ should both concur in
purchasing their father, and he being now free should then pumhased
die, his inheritance would belong to the daughters by wirtue
of their appointed shares in his estate, or their right to the ana consc-
rctum, and not by right of wula ; for inheritance by the
latter right does not combine with inhoi^tance by nu8uh free, be-
longs to
* PL of Umhah.
800
INHERITANCE.
The in-
heritance
of a slave
them as or consangoinity. And if the two daughters should die, or
heirs, *and sliould die, leaving the father surviving, the
not b/ inheritance would belong to the father ; hut if he were dead
the inheritance of the daughter who died first would belong
to her surviving sister by share and return, and there would
bo no inheritance for emancipators by reason of the existence
of an heir of blood. If we suppose the surviving sister
were to 'die, would the emancipator of her mother inherit ?
Upon this point there is some doubt, the removal of which
pm-hawd depends on the question whether the wtila is drawn to the
and en- ^ daughters by means of the emancipation of their father or
by afo^'er ^ Perhaps, however, it is nearer the truth to say that
^’ould he no such drawing of the inheritance on the
snns, ground that u uUi does not combine with consanguinity and
belong m emancipation.
father's
death, to
the two
sons, in
ihe pro-
portion of
three-
oneTfourSi! brother the remaining fourth.
The tcula Eighth. When a slave has begotten a son on a freed-
rfamn -n-oman the tetda of the son belongs to the emancipator of
byaalarc his mother, and if the son should purchase a slave and
CDiwicipato him, the of that slave would belong to the
belongs to 8on. But if the same slave should purchase the fa^er of
emancipator, and then enfranchise him, the vmla of the
shifts to son would shift from the emancipator of his master to the
emancipator of his father, and each of the two (that is, the
son and the slave) would become mowla to the other. If in
these circumstances the father should die, his inheritance
would belong to the soq, but if the son should die without
a consanguineous heir, his wnla would belong to the
emaneipator of his father ; andiftheenfranchisedslaveshould
die without consanguineous heirs his umla would be for the
son who originated his emancipation, and if they both die
without consanguineous heirs the Sheikh has said that the
emancipator of the matter would have a prefisrable right to
the wula ; but this is liable to doubt.
Screnth. If one of two sons should concur with their
father in purchasing a slave and then emancipating him,
and the father should then die, after which the enfranchised
should also die, the child who purchased him in concurrence
with the father would have three-fourths of his inheritance.
dpator
the father
if he is
enfran-
chised.
ikhehitance uv wula ob patronage.
801
II. — The wula of resjjonaibility for offences.
When one person engages with another that he will be nowthi$
responsible for whatever may happen to him, and have his ^ngt”
wula, the engagement is valid, and the inheritance of the
person on whose behalf the engagement is made is the
established right of the engager. But such an engagement
can bo entered into for a mihnh only who is not subject to a
wuh, as, for example, one enfranchised for expiation or in
performance of vows, — or for one who has no heir of origin ;
and such a person, that is the engager, does not inherit
except pn entire failure of consanguineous heirs, and on
failure of an emancipator. But he is before tho Imam. A
husband and wife, however, take with him tho highest shares
.appointed for them respectively.
III. — The Wula of Imamut.
When there is no surety for offences the ime'm is the heir The imdm
of a person who has no other heirs ; and this is the ^jbird
kind of wula. If then tho hndm bo present® the property
belongs to him to do with it as he pleases. Ahj, on whom
bo peace, was accustomed in such cases to give the property
to the poor and indigent of the deceased’s city, and tho
weak and infirm among his neighbours, gratuitously. And
if the Imdm is absent® the property is to be divided
among tho poor and indigent, and not to bo given up or
surrendered to any other but a righteous sultan or ruler,
except under fear or actual compulsion. .
Miscellaneous Cases. Spoils of
First. Whatever is taken from associators® in actual
warfare belongs to tlie combatants, after deducting thebatauts,
khooms or prescribed fifth. But whatever is taken from ^onfrom
them by a band of assailants ’’ without the permission of infidels by
• troops act-
ing witli-
* See antet p. 272^ note , out the au-
• All people who deny the unity of the Deity, among whom
Cliristians are supposed to bo included. •
’ Literally, cavalry from five up to three or four hundred.— *
Freytag,
802
INHElllTANCE.
thority of the Imam belongs to him; and whatever is abandoned by
Mongs^to associators through fear, or becomes separated from them
him. without warfare, also belongs to tho Imam ; >vhilo what is
taken from them by way of composition or juzyut (poll-
Whatis belongs to tho warriors, and failing them is to be
th*^m divided among poor Mooalims.
time of Second. Wliat is taken by sudden attack from enemies,
^ace must if in time of peace, must bo restored to them ; otherwise
turned. it belongs to tho takers, but is subject to tho fifth.
The Imam Third. Wliou a soldier dies leaving property and
ha^ot having no heir, tho property belongs to tho Im&m.
soldiers.
( 303 )
CHAPTER VI.
APPENDAGES TO THE LEGAL CAUSES OP SUCCESSION.
Section First.
Of Succession to the Child of a Moolainali, or Wonmn
who has been separated from her Husband by Lictn, and
to a W'ulud-ooz-zhta or Illegitimate Child.
The hoirs to tho child of a woman who has been xho heirs
separated from her husband by lidn aro his own children
and his mother; tho mother taking a sixth, and thtiprocated
children the remainder, in the proportion of two shares
to a male for one to a female. If there is no child, the children,
whole of the property goes to tho motlier, a third as her
appointed share, and tho remainder by virtue of the return, mother’s
But, according to one report, she inherits only a tliird, and
tho remainder goes to tho Imdm^ who is responsible for
tho fines of such a person. Tho first, however, is the more
prevalent doctrine on tho subject. Upon failure of boUi
mother and offspring, tho inheritance of sudi persons
passes to their brothers and sisters on the mother’s side,
and their children in due order, and to their maternal
grandfather, however remote in ascent, in order of proximity ;
on failure of these it passes to maternal uncles and aunts
in the usual order of inheritance. In all these degrees
males and females inherit alike. When all the r^atives
on the mother’s side have completely failed so as not to
leave a single one of them to succeed as* the heir, the
inheritance passes to the Imdm. In all cases, however,
it is to be observed that the husband imd wife take tho •
shares respectively appointed for them, that is, a half
804
INHEBIXAKCE.
and a fourth when there is no child, and a fourth and an
when there is one. With regard, again, to the
may in- Hght of children of the description under consideration to
herit. succeed to the relatives of their mother, some have said
that they have the right because their nvsvb or descent on
her side is established, while others have maintained tliat
they have no such right of succession,, unless subsequently
acknowledged by their father; but this opinion is now
abandoned. The father and those related through him
can never inherit to such a child, even though it were
acknowledged by him after the liihi ; but in that case the
child would inherit to the father. It does not follow,
however, that the child should, after the acknowledgment,
be entitled to iflherit to the relatives of his father, and
according to the more prevalent opinion, neither does he
inherit to them nor they to him, since his nvmb, or
paternal descent, has been entirely cut off by the lU'tn, and
because tho effect of an acknowledgment is confined to the
person who makes it.
Miscdlaneous Cases.
Pntenml First. In distributing tho inheritance of persons of
sbip^ii'ot description paternal relationship is not taken into
taken into account at all ; and thus, should tho deceased have loft
two brothers, one of them by both father and mother, and
respect to tho other by the same mother only, they share tho inberit-
perwns. equally. IJy tho same rule, if there had been two
sisters, or a brother and sister, one by the same father
and mother, and tho other by the same mother only, they
would be equal sharers in the estate. And further, if he
left the son of a sister by both parents, and the son of a
sister by the same mother only, or a brother and sister by
both parents, with a grandfather or grandmother, the pro-
perty would, be divided between them in thirds, as tho
paternal relationship is entirely disregarded.
Second: If the mother of such a person dies leaving no
other heir besides him, the whole of her inheritance must
. go to him ; but if with him her parents, or one of them,
should exist, these together receive two-sixths, or one of
SUCCESSION TO AN ILLEGITIMATE CHILD. 305
them receives one-sixth, and the remainder goes to the
son. If instead of a son she had left a daughter, the
half of the estate would go to her, and the surplus would
revert to all of the heirs in proportion to their respective
shares.
Third. If a husband disavows the parentage of a Case of a
foetus or embryo in the womb of his wife, and the liaii or
mutual imprecatioij takes place, after which she produces ing the
twins, they are both heirs to each other as brothers by the
mother’s side, but not by the father’s.
Fourth. If a father should renounce before the Sultan Renuncia-
or ruler all responsibility for the offences of his child and
right to his inheritance, and the child should subsequently his right of
die, the Sheikh (on whom God be merciful) has said in his
Nihaijah, that the succession of such a child rests with the docs not
nsnbdt or male kindred of his father, and not with those of
his mother. But this opinion is now obsolete; and the w in itself
prevalent doctrine maintains the father’s right, notwith-
standing his renunciation.
The widud-ooz^zina, or illegitimate child,^ has no nusuh An illc-
or parentage. Consequently, neither the zanee, or he who has
has unlawfully begotten, nor she who bore him, nor any of
their relations, can be his heir,® nor has ho any title to YiL
their succession.. His inheritance, therefore, is only for only heirs
his own children, and on failure ^of them it goes to the chiidreii
Imam. This law, however, does not affect the rights of a and failing
husband or wife, who accordingly receive their appointed ^
shares, the lowest if there be issue of the deceased, and
the highest if there bo none. According to one report, the
mother and her relatives can inherit the property of a
7Vidud‘Ooz-zina in the same way as that of the child of
a woman separated from her husband by lidn ; but this
report is now rejected. •
* Literally, child of fornication or adultery.
® There is a remarkable difference between the Imameea and
Hanifeea codes on this point, for which see Digest, p. 411.
PART IP.
806
INHERITANCE.
Section Second.
Of a Foetus or Embryo in the Womb, and of Lost or
Missing Persons. ®
Title (rf a A foetus inherits if brought forth alive ; so also if still"
inherit. ^0*“ in consequence of violence to its mother, or mthout
such violence if it has shown any signs of life at the birth.
But if when half-born these signs of life should appear,
and totally cease Iicforo complete separation from the
womb, no right of inheritance is established. In like
manner, if it exhibits motions that are not indicative of
life, as those of an animal just slaughtered, it has no claim
to inheritance. But, on the other hand, it is reported by
liiibdy, from Aboo Jdfor,* on whom bo peace, that when
an infant displays at its birth evident motion as if it were
alive, it both inherits and is inherited from. And there is
a report to the same effect by Aboo Ihiseer, from Aboo
Abdoollah,^ on whom bo pence. It is by no means a neces-
sary condition that the child should be produced alive
before the death of the ancestor ; insomuch that, if born
at six months from the death of its father, the right of
inheritance is established ; or even if bom at nine months,
if its mother has not mari’ied again.
In coses of When a deceased has left both his parents, or one of
alf them, or a husband or wife, and also a fmtus in the womb,
ingsbnrcrs all the sharers take their lowest appointed shares, and the
lowest residue is secured till the birth of the child ; and if bom
appointed dead the shares are then to bo completed in full,
shares. j£ ^ person deceased should leave an existing son and
a foetus in the womb, the Sheikh, to whom God be
merciful, has declared that only one-third is to bo given
to the existing son, and two-thirds must be reserved for
the event of the birth, because it is probable that these
may be tyvins ; but more than two is extremely rare,
though possible. If, on the other hand, the existing
’ Tlic first part of tliis section, which, in the original, is occupied
with hermaphrodites and monsters, has been omitted as of little
practical use,
* The Imam Mohummiid Bdkir. ’ The Im&m JUfer SMih.
SUCCESSION TO AN EMBRYO.
807
child be u female only, a fifth part of the estate is to bo
given to her, and the remaining four-fifths reserved for
the event of the birth. This doctrine is good or univer-
sally approved.
The fine or penalty for occasioning the death of an Fine of
embryo is inherited by both its parents and relatives
through them jointly or through the father only, whether inherited,
by descent or special cause, as emancipation or otherwise.
If two persons mutually acknowledge each other as Mutual
relations, they inherit as such from each other, and arc
not obliged to prove their connection. But if generally ofrclation-
known to be of a different imauh or descent than that ^
implied in their acknowledgment, their word alone cannot mutual
be received.
. . succession.
Of lost or missing persons, the property is to be of lost or
reserved for a term ; but with respect to the length of
this term there are various opinions. Some doctors have thc^pro-
prescribed four years, and this is founded on a report of
Aman lien Eesa from Sumaut, as having been so decided heritable
by Ahoo Ahdoolhth^ on whom bo peace ; but this report is Jeatiiisas-
weak or not sufficiently authenticated. Others have certaiued. .
alleged that the mansion of such a person may be sold
after ten years ; and this is approved by Moofoed, on the
ground of a report of Aly Bat Muhriar, as having been so
decided hy Ahoo J(tfa% on whoi® be peace, with respect
to the sale of a small part of a mansion ; but a general
inference from a decision of this nature appears to bo un-
reasonable. And the Sheikh^ to whom God bc merciful,
is of opinion that the property may be lawfully given up
to persons who are present on their becoming responsible
for it. Further, according to a report by hhak Ben Omar
of a decision by Aboo Ahdoollah, on whom bo peace, the
property of the absent person mify bo divided among his
heirs when they are in opulent circumstaifces, Jo bo
restored to him if ho should return. But, with regard to
Isliak, there are some doubts of his fidelity, and though
his report is maintained by Sulml Ben Zeead, it is still
considered weak or insufficiently autlientieated. Upon the •
whole, the opinion upon the point stated in the Khilafy
308
INHSUITANCE.
that the property of a missing person is not to bo distri-
buted among his heirs until such a time has elapsed that
there is no probability of a person of his age being alive,
is that which is preferred or most generally approved.
Section Tninn.
Of Persons drowned or overwhelmed in Ituins.
Penona These inherit from each other when all or some of
drowned them loavo property, and they are so connected as to be
whelmed heirs to each other, and that they died in such circum-
in rnm-s, if gtmiccg ag to render it doubtful which of them died first.
the time of ,
the death If, therefore, they had no property, or if there were no
known are right of inheritance between them, or if one was
heirs of heir to another without his companion being heir to him,
if con^***'^’ brothers one of whom has left a
nccted so child, in none of these cases has this law any effect ; nor
TtiUe tT” when their death is not from the same cause, nor
inherit- where they are all known to have died at the same instant
of time, nor where one is ascertained to have died before
' another. Whether, again, the application should be ex-
tended to the case of dying together by any other cause
than that of being drowned or overwhelmed in ruins,
where a doubt prevails as to the time of the respective
deaths, is a question upon which there is a difference of
opinion, though the Sheikh, in his Nihayah, has expressly
extended it to all cases where this doubt may prevail.
Supposing all the conditions to be established, the
only to the parties dying together succeed respectively to the original
original property of each other, but not to that wUch is inherited
McCnot from himself by the other, as maintained by Mofeed,
to what because the principle of law in this case proceeds upon the
0116 ilQS * * -i. * *
inherited supposition of a possibility, whereas making a person the
from the gf property inherited from himself would require
of his fate, liim to be alive after we have supposed him to be dead,
which is impossible. Moreover, there is an express tradi-
tion to the effegt that ** where one only of the parties has
' property, it goes to him who has none.’*
As to the necessity of presuming that the person
SUCCESSION AMONG EEBSONS DEOWNED TOOETUEE. 809
having tho weakest right of inheritance — tliat is, the
smallest share— should have survived the other, there is
considcrahlo doubt. The Slieikh, in his Eejaz, has posi-
tively rejected the maxim. But in reality, as observed by
him in the Miihsoot, its application does not alter tho
effect of the law, unless we follow out the doctrine of
Mofeed, in which case the effect of tho preference is
obvious. The opinion, however, expressed in the Eejaz,
that there is no necessity in law for observing the arrange-
ment, seems to be by far the best founded; and oven
if tho necessity for tho supposition were established, it
could bo of no advantage to either of tho parties.
Thus, if a husband and wife are drowned together, Case of a
wo first suppose tho death of the husband, and append
to tho widow her share in his estate ; we then suppose
tho death of the wife, and append to the husband his share
in her original estate ; but by no means a share in that
which wo suppose her to have inherited from himself.
In like manner, if a father and son are drowned together, of a father
tho share of tho father is first assigned, and then that of and son.
tho son ; but if each should have a preferable title to the
remainder of the other’s estate than his other heirs, a
mutual transfer, or an exchange of property takes place,
and tho succession of each devolves upon the heirs of the
other. For example, the sou leaves brothers or sisters
on tho mother’s side only, and the father also leaves
brothers, in which case tho property of the son is trans-
ferred to the father, and tho property of the father is
transferred to the son, and then what has thus become
the property of each devolves upon his own heirs respec-
tively. If, again, we suppose that each one of the parties
has associates with him in his right of inheritance, as,
for instance, when the father had other sons than the one
drowned with him, and the son loaves also chtldren^of his
own, the father, in this case, being first supposed the
survivor, has a sixth part of the son’s pro*porty added to
his; and then supposing tho son to |iave survived, a
portion of the inheritance, in common with the other ‘
children, is set apart in his name, which portion, together
810
INHERITANCE.
with the remainder of his own original property, descends
to his own children.
Where, again, the heirs who perish together have equal
rights in the succession of each other, as, for instance,
two brothers, neither is supposed to have preceded the
other, and the rights of botli being equal, the estate of
each one of them is transferred to the other : and if neither
of them leaves any heir, the succession to both devolves
on the Imam ; or if one of them leaves an heir, Avhat has
become his property by the transfer goes to such heir,
and what has become the property of the other goes to the
Imam,
Section Fourth.
Of the Inheritance of MnjooHces, or Firc-WorshippcrB.
sometimes enter into unlawful marriages
the case of which have a semblance of right, as l)cing permitted by
mujooseea
may be
valid and
invalid.
Nusuh a
good
ground of
tbeir o^^■u religion. Hence arises both a valid and an
invalid nnmh, or consanguinity, and a valid and invalid
mthith, or special connection, ns causes of inberitunco
among them, l^y invalid, wo mean wbut results from a
maiTiage that is unlawful with us but not so with them ;
as, for example, when one of them marries bis mother and
begets a child by her, the nimih of the child is invalid,
and also the Hiihnh, or nftrriage relation between the parties
themselves, is invalid.
Some of our doctors have held that there is no true title
0
of inheritance except for a valid nnmh and a valid snlmh :
inheritance and this w'as the doctrine of Yoonvii Ben Ahdonnihnan
valid or followers. Others, again, allow the title by a valid
1 ’ b misuh, and Ity a valid mdmh to tlio exclusion of
80 only** a mbub that is invalid, ijnd this was preferred by Fml Ben
valid Sliazan as the doctrine of the ancients on tho subject. It
has also been adopted by our Sheikh Mnfeed, and is generally
approved. Tlic Sheikh Aloo jdfer admitted succession by
both numih mdmlnh, whether valid or invalid ; — and upon
this supposition ,>if two causes of succession should meet in
the same person, ho or she would be entitled to inherit by
virtue of both, as, for example, a mother who is also a wife
SUCCESSION TO FIRB-WORSIIIPPEKS. 311
would have both a wife’s share, which is a fourth on failure
of issue, and a master’s, which is a third if there wore none
to participate with her such as a father, while the remainder
would revert to her in the latter capacity ; — or a daughter
who is also a wife would have a half and an eighth, while the
remainder w'ould revert to her by reason of propinquity to
the deceased when there is no other heir associated with
her ; — or a sister who is also a wife would have a fourth
and a half as her shares, with the remainder by reversionary
right if there is no other heir.
If two causes of succession arc combined, one of which When two
would have the effect of excluding the other, inheritance
can only be by virtue of the excluding cause ; as for instance combine,
in the case of a daughter who is also a half-sister on the
mother’s side and would have a half as a daughter’s share other, the
and nothing in the other capacity, because with us a sister
has no title to inheritance when the deceased has left a
daughter, — or a dauglitcr who is also a daughter’s daughter,
and Avould have a share in the first ca^iacity but none in the
second ; — or a paternal aunt who is also a half-sister on
the father’s side, and would have a share only as a sister,
to the exclusion of her title as an aunt ; — or a paternal aunt
who is also the daughter of such an aunt, and would have
only an aunt’s share.
•
Miscellaneous Cases.
First. A Mooslim has no title to inheritance for an An invalid
invalid suhuh. So that if we were to marry* a relative
within the lu’ohibited degrees, neither of them would bo inheritance
heir to the other, whether the prohibition is one as to which
all are agreed, as for instance when a man marries his
mother by fosterage, or one with regard to which there is a
difierence of opinion, as when ho marries the mother of a
woman with whom ho has had illicit intercourse ; «and it Otherwise
makes no difierence whether the husband were aware of the ^usub,
illegality or not. * ** *
Second. A Mooslim, however, may i^erit for both a |ronnd
valid and invalid nusuh ; for a semblable contract is like a
valid one in establishing the paternity of a child. invalid.
812
INHEBITANCE.
CHAPTER VII.
OF THE COMPUTATION OF SHADES.
SF.CTION FiDST.
Extractors of the Six Shares, and hoic they are to he
treated ichen several Persons are entitled to the same
Share.
Extractors By the extractor of a share we mean the smallest number by
numbers which the share which it represents can be extracted from the
t’^olbara deceased’s property without a fraction ; and for
cun be the six appointed shares there arc five such numbers. Thus,
a half can be extracted by tlic number 2 ; a fourth by 4, an
fraction, eighth by 8, one-third and two-thirds by 3, and a sixth by G.
So that every case that presents two halves, or one half and
a remainder, is to be arranged by the number 2, and every
case that presents a foiurtli and a half, or a fourth and a
remainder, is to be arranged by the number 4. Where,
again, there is an eighth with a half, or an eighth with a
remainder,* the arrangement is by 8 ; whore one-third and
two-thirds combine, or there is one of these with a
remainder, the arrangement is by 8; where there are a
sixth and a tliird, or a sixth and two thirds, or a sixth and
a remainder, it is by 6 ; where there is a half with a third,
or two thirds and a sixth, or with one of these two, it is
by 6 ; but iPfor the half we substitute a fourth, the arrange-
ment must be by 12 ; while if, in the place of the half, we
put an eighth,* it must bo by 24.'
' In all cases the estate is to be divided into the number of parts
indicated by the extractor.
COMPUTATION OF BHAEES.
813
This being premised, wo have next to consider whether
the number of parts into which tho deceased’s estate has
to be divided agrees with tho shares, or exceeds, or falls
short of them.
I. Let ns suppose that the parts agree with the shares, tj,g
and that each of the shares can bo divided among the indi-
viduals entitled to it without a fraction. On this snpposi- «
tion no difficulty can arise : as, for instance, where the .
1 -1 , 1 .. . . , <. .i -.1 1 ®Ku:e with
deceased has left a sister by the same father, with her the shares,
husband, and the estate is to bo divided into two parts, or
where the survivors are two daughters and both parents, divisibio
or both parents and a husband, in each of which cases tho “
division is by six, and the estate can be distributed among oatractor
the persons entitled to it without a fraction. uSmged
But though the parts into which the estate is to be
divided may agree with the shares, yet the shares may not parts agree
be divisibio among the individuals entitled to them without gharcs, but
a fraction ; and this may happen with one share, or with ""o “f .t^o
^ ^ * snftrcs js
several. When there is only one share in this prcdica-„ot
ment, the original extractor of tho case is to bo multiplied
by the number of the individuals entitled to the share, that i^hiduals
is, when there is no common measure between the indi- to
It, tDB
viduals and their share. Thus, take the case of the extractor
deceased being survived by both parents and five daughters;
here the extractor is six, and the* share of tho daughters by the
four-sixths, but these cannot bo divided among five without
a fraction ; and there is no common measure of four and
five : tho extractor is accordingly to bo multiplfed by the
whole number of tho daughters, and the product (6 x 5=80)
will be the new extractor of the case ; the share of each
heir, as it stood before tho multiplication, being now also
multiplied by five, the product will bo the amount that
each is entitled to. When, again,*there is only one share
that cannot be divided without a fraction amoifg the- indi- common
viduals who are entitled to it, but there is a common Ae'sharo’
measure between the individuals and tlie share,
extractor is to be multiplied by the met^ipure out of the when the
number of individuals, not out of the shares ; or, in other
words, the number of individuals is to be divided by the by the* ^
314
INHERITANCE.
measure, measure, and the extractor multiplied by the quotient,
cxfractor Thus, take the case of two parents and six daughters;
multiplied here, the share of the daughters being four-sixths, it
quotient, bc divided among them without a fraction; but
there is a common measure (2) of the share (4), and the
number of individuals (6) ; the extractor is accordingly to
be multiplied l)y half of the number, or three, by which
means it will bc raised to eighteen, and as the shares of
the parents, in the original division, were two, they are
now also to bo multiidied by three, by which means
they will become six, while the four shares of the
daughters, in the original division, l^eing multiplied in
the same way, will become twelve, giving two portions
to cacli.
When AVhen there is more than oiui share that cannot be
morctimn without a fraction among the persons who are
one share entitled to it, there may bc a common measure of all the
indivisihle gi^ares that cannot be so divided, and of the individuals
fraction, entitled to them, or there may be no common measure in
wurer^to cases, or there may be a common measure in
befollowcd one of the cases and none in tlic others. In the first of
riiares^in cascs, the number of the person is to bo reduced in
that pre- correspondence with the common measure ; in the second,
dicamcnt. numbers arc to bo dealt with as they stand ; in the
third, the single class id which there is a common measure
between their numbers and their shares is to be reduced
in correspondence with the common measure, and the
And the stand. After all this has
resulting been done, the resulting numbers will be found to be
operated 'inoolumathil (equal), or mootudakMl (one an aliquot part
with of the other), or vwotnwajik (commensurable), or mootn-
accoMin^* (prime) to eavli other. If they are the first or
^ they aro equal, it ^ sufficient to take one of the numbers, and
multiply the original extractor by it, as, for instance, where
tlie deceased .has left two brothers by the same father and
mother, and two brothers by the same mother only.
, Here, the extractor being three, the shares cannot bo
divided among the persons entitled to them without a
, fraction, but one only of the numbers or two is to bo
COMPUTATION OF SHARES.
315
takon to multiply tho extractor, or three, which will thence
become six, and give two parts to the brothers by the
mother only, and four parts to the brothers by father and
mother, to bo divided among them equally. Where again
the numbers ai’e monhidakhU, or one a measure of tho or mootu-
othor, reject the least of tho numbers, and multiply tho
extractor by tho greater. Thus, where tho deceased has
left three brothers by the same mother only, and six by
the father, tho estate is to bo arranged into three parts ;
but these cannot be divided among tho parties without a
fraction ; tho number, however, of one of tho classes is
half that of the other, the numbers being mootndakkU, tho
extractor is accordingly to bo multiplied by the higher of
the numbers, or six, and v.’ill thus be raised to eighteen,
by which it will be found that the estate can be arranged
without a fraction. When the numbers are mooinwa/ik or mooiu-
or commensurable, you are first to multiply one of the
numbers by tho measure of tho other (that is, by the
quotient of the other when divided by the measure), and
then multiply the original extractor by the product.
Thus, whore the deceased has left four wives and six
brothers, tho extractor is four, but the estate cannot be
BO divided without a fraction ; there is, how^ever, a measure
of four and six, which is two, and you are to multiply one
of them (six) by half of the other (four), and you have
twelve, by which you are now to multiply the original,
which is four, and you have in the result a number which
will satisfy the case. If the numbers are mooti^ayyuii or or tmoiu-
prime to each other, one of them is first to bo multiplied
by the other, and then tho original extractor by tho pro-
duct. Thus, when there are two brothers by the same
mother only, and five by tho sayio father, tho original
extractor being three, tho estate cannot be divided without
a fraction among the persona entitled to it, ancl tho*num-
bers are neither commensurable nor one a port of tho
other ; one of them is accordingly to be multiplied by the
other, which will give ten, and that number multiplied by
the original extractor, when the product will be found to
satisfy the case.
816
INHERITANCE.
Difference Numbers are either equal® or difTerent, and if different,
expMwdf mooUulakhilf vwotmvafik, or mootuhayyun. They
are mootudakhll when tho smaller being subtracted once or
more times from the greater, exhausts it completely, and
the smaller does not exceed half tho gi*eatcr. If you like,
you may call them mootunasih or proportional, ns three to
six and nine, or four to eight and twelve. They are
mootinrnfk when the smaller being subtracted once or
oftencr from the greater, tho remainder is more than one ;
as, for instance, ten and twelve, for when you subtract tho
former from the latter, tho remainder is two ; and if you
subtract two from ten several times, the latter is com-
pletely exhausted.'* When the remainder* is two, the
numbers are said to agi*ee in a half ; when it is three, the
agreement is by a third ; and so on up to ten. When it is
eleven, you must take one part of that number to express
the agreement.^ The numbers are mootuhayyun when, if
you subtract the less from the greater once or oftener, tho
remainder is unity ; as, for instance, thirteen and twenty,
for if you subtract the former from tho latter, there remain
seven ; and if seven from thirteen, there remain six ; and
if six from seven, there remains only one.
When tho II- Let us now suiiposo that tho number of parts into
partainto ^ wdiich the deceased’s estate must be divided falls short of
which an the shares to bo provided for, — a case that can only happen
dWded* ^ husband or a wife intervenes ; as, for example,
falls short when the deceased has left both parents, two or more
^ares. daughters, and a husband or wife, — or both parents, a
daughter and a husband,— or one parent, two or more
‘ These are what are previously described as mootumathiU which
literally means similar, ^
^ If it he considered that division is only a continued subtrac-
tion, this rulS is tho same as our own for finding the greatest common
measure.
^ Tlint is, ft remainder whicli, being subtracted from the lust
subtrahend, completely cxliausts it.
^ The number» in Arabic above ton gre compound, as 1-10, 2-10,
Ac., and there is no wmd to express a part of them, as an eleventh,
or a twelfth, &c.
COMPUTATION OF SHARES.
317
daughters and a husband. In all these cases the husband
or wife takes the lowest share appointed for them respec-
tively, each parent has a sixth, and a daughter or two or How the
more daughters the remainder, as the extractor is never to
be increased. In like manner, when there are two brothers adjusted,
by the same mother only, two or more sisters by the same
father and mother, or by the same father only, with a
husband or wife, — or one brother or sister by the same
mother only, with a sister and a husband, — in these cases
the husband or wife takes the highest share appointed for
them, and the deficiency falls specially on the sister or
sisters by the same father and mother, or the same Mher
only. If the estate can now be divided without a fraction,
well; if not, you must multiply the shares” of those
whoso portions will not divide among them without a
fraction by the original extractor. As on cxamjdo of the
first case, let us suppose that the deceased has left both
parents, a husband, and five daughters ; hero the extractor
being twelve, the husband has three of the parts, the
parents four, and the remaining five, which are the
daughters, are divisible among them without a fraction.
As an example of the second case, let us substitute three
daughters for five, when the remaining five shares will not
bo divisible among them without a fraction ; and here wo
must multiply the original extractor by three, when it will
be found that the product will divide among them without
a fraction.
ni. We have now to suppose that the number
shares into which the estate is to be divided exceeds the parts into
amount of the shares. When this happens, the excess or “
surplus is to be returned to the sharers, excepting the divided
husband and wife, the mother, when there are brothers, thTsto^s,
according to what has been already stated, and a person surplus
who has only one cause of inheritance wh& tb*re is S
another who has only two causes, — in which case the ***“«”•
master of two causes has a preferable right to the^^P*
»—
* Arab. Sikani. : But from the second example it would appear *
tliat it is the number of individuals that is to be multiplied.
818
INUEBITANCE.
Examples return over the master of one. As general examples of
rctMD. return, take the following cases: — Ist. Both parents
and one daughter: here, if there are no brothers, the
return is in fifths; hut if there are brothers, it is in
fourths, and the original extractor of the case is to be
multiplied by the exti’actor of the return.’' 2ud. One
parent and two or more daughters : here the surplus
reverts by fifths, and the original extractor is to be multi-
plied by five. 3rd. One brother or sister by the mother
only, with a sister by the same father only : when the
rctuni is in fourths, according to the most authentic
report. 4th. Two brothers or sisters by the same mother
only, with a sister by the father : when the return is in
fifths, and the original extmetor is to bo multiplied by five,
when it will be found that the product will dispose of the
case without a fraction.
Section Second.
When one
of the
heirs dies
before par-
tition, his
portion to
be separ-
ated from
the general
mass ;
0/ Moonamkhat, or Vented Interests.
By this wo understand that a man has died, and that
before a partition has been made of his estate one of his
heirs has died also, so that two partitions arc to bo made
of one original estate. The way to dispose of this case is
to arrange the first estate, and take a portion out of it for
the second, then if the heirs of the second deceased are
the heirs ,of tlie first, without any difference in the parti-
tion, there is, in fact, but one estate to divide ,* as, for
instance, whpn the deceased has left three brothers and
three sisters, all related on the same side, and one of the
brothers dies, then another, after which one of the sisters
dies, and then nnothcr,i leaving one brother and one sister
surviving, ,among whom the property of the original
’ From tho nuthor’s oxtreme brevity it is difiScuIt to follow him ;
but tills, I believe, is liis meaning : — The retuni being a fifth, its
extractor most bo, C; and tho original extractor (6) multiplied by it
becomes SO, which being divisiblo into fifths, gives grOtlts, or 12, to
the parents, and :)'5ths, or 18, to the daughter.
COMPUTATION OP SHARES.
319
deceased is to bo divided in thirds. But if there is any and if it
difference in the right or in the heirs, or in both right and ^jlhoura^
heirs, then it must be considered whether the portion of fraction
the deceased heir will divide among his own heirs without own”lfcirs^
a fraction, and if so, nothing further is necessary; as if a nothing
person should die leaving a widow, a father, and a daughter, accessary,
and the widow’s share being an eighth is three parts out of
twenty-four, but she dies leaving a son and a daughter,
when her share is obviously divisible without a fraction.
If the share ascribed to the second deceased cannot be
divided among his own heirs without a- fraction, the case divided,
presents two aspects : —
First. If there is a common measure of the portion
of the second deceased out of the first estate, and of the common
number of parcels into w'hich the second is to be divided,
1.7 . 1 I 1 beUveen it
we multiply a portion of this latter number corre- and the
spending to the measure (that is its quotient when divided
by the measure) by the wdiole number of parcels into which quotient of
the first estate wiis t.r;n the latter
both estates. Thus,
brothers by the same mother, and also two by the same XitipUed
father, witli a husband, and the husband dies leaving a l>y the
son and tw’o daughters : hero the original extractor, which
is 6, must bo raised to 12, on account of the fraction (as tion.
one-sixth, the share of the two l^^'others by the mother,
cannot otherwise be divided among them), and the hus-
band’s share being a half of these twelve parts, or 6, is
plainly indivisible, without a fraction, into four* parts (as
required for the distribution of his estate) ; but there is a
common measure of 6 and 4, which is 2, and the part of
four corresponding to it, or a half, that is 2, is accordingly
to bo taken, and the original extractor (12) to bo multi-
plied by it, when the product (24) Vill be found to satisfy
the whole case, and each person who' had anythiiigjin the
first estate will now have that share also multiplied by two.
Second. When there is no common measure of the If there is
portion of the second deceased out of the first estate
^ ^ ineAsure,
and tho number of parcels into which his own must bo the ex-
divided, then the whole number of the parcels is to be
was divided, and the product will arrange ^wuiedhy
Thus, if tho deceased should have left two the men-
S20
INHKBITANOE.
taken, and the original c:ctractor multiplied by it, and
Sie whole ono who had anything in the first estate is to take
number of l^ig portion multiplied by the same number also. Thus,
entitled to when the deceased has left a husband, two brothers or
sisters by the same mother, and a brother by the same
Illnstra- husband has then died, leaving two sons
tion, and a daughter, the original estate being divisible into
six parts, three of them, which is the husband’s share,
cannot be divided without a fraction into five parts ; and
there is no common measure between three and five, three
is accordingly to bo multiplied by five, and the product
will satisfy both estates.
Similar When the presents more than two estates,
be'^pW when more than one of the heirs has died before
when two partition of the first estate, you are to proceed, with respect
heira'dio “ reference to the two first estates, in the
before par- same way as you proceeded with one of them in respect
the other. And so on, if we suppose that there has
one. been a fourth death or more.
Section Third.
JIoiv to Ascertain an Heir's Portion of the Turkah or
Deceased's Estate.
»
Several methods have been devised for this purpose, of
which the following is the simplest : — Set aside for the heir
so mudli of the assets of the estate as may be proportionate
to his part in the Fureezut, or number into which the whole
must be divided to give each heir his portion without a
fraction. With this view' you may either divide the amount
of assets by the fureezut, and multiply the quotient, or
result of the division, by the number in the fureezut allotted
to the heir, or you mfy multiply the assets by the heir’s
allotment, (ind divido<the product by tSao fureezut, when the
resulf will be the same.*
' Thus, if Uk assets are 24 dccnars, ihe fureezut 12, and the heir's
allotment afourth.orS-iaths, you either divide 24 by 12, and multiply
the quotient (2) by 3 ; or multiply 24 by 3, and divide tlie product
(72) by 12, when the result is in ciUier caso 0 deenars, as the heir’s
allotment.
COMPUTATION OP SHAKES.
821
So far when the assets are a whole number. Now
suppose that there is a fraction above the whole number,
as for instance so many decnars and two-thirds of a decnar.
Hero you are first to multiply the whole number by the
denominator of the fraction, and add its numerator to
the product ; you are then to proceed with the sum thus
obtained in the same way as you have been directed to
do in the first instance. When you have thus arrived at
the heir’s portion, you are to divide the amount by the
denominator of the fraction, as by two if the fraction were
a half, three if it were a third*, and so on. If there is a
remainder which docs not amount to a deenar, you are to
expand the remainder by reducing it to keralsy and then to
divide the product. If there is a remainder which does
not amount to a her at ^ you are to expand it in like manner
by a reduction to hoohhas, dividing the product as before,
and so on to arbozz and jooza as far as may bo necessary."
To prove the work you are to add all the portions of the
different heirs together, and if they make the exact sum of
the assets the work is right ; if not, there is an error some-
where.
® Tliere is some obscurity in this case, but it may be illustmtcd
tlius: Taking the assets at 24 and 2 tiiirds, and substituting for
ileenars, pounds sterling, tlie subdivisions of whicli are more familiar,
wo have first 24 x 3+2=74 ; then 74 X 3*-r- 12=18, with a remainder
of 6-12ths, which is the portion of the heir as exliibited in thirds,
and being divided by 3 gives 0 and 2-12lhs ; now reducing 2-12tlis
of a pound to shillings and pence, we have GZ. 3^. 4d. ak the heir*s
one-fourtli share of 24 2-3rds of a pound, or 24Z. ISs. 4d.
PART II/
Y
( 823 )
BOOK VIIL‘
INHERITANCE.
INTRODCOTION.
Thb causes which operate in law a title to succession are Grounds of
three, as proscribed by our holy religion : first, mmd) or
consanguinity : that is, tho connection of ’one person with
another by any of tho ties of blood or descent established by
birth ; second, suhtd or affinity : that is, the connection of one
of two persons with the other, produced by marriage which
is established betwixt them by contract; and third, wnla,
dominion or patronage : ^ that is, the connection of one
with another by manumission, or other legal cause to bo
hereafter explained, not however produced either by birth
or marriage*
Of Inheritance hy Consanguinity .
Under tho first title are comprehended several classes or Tho right
series, each of which, in the order here described* enjoys a
preferenco in succession over that which follows it, to tho itiTolvcs
' utter exclusion of the latter ; and thus, whilst of tho first gj
class a single member, whether male or female, exists, classes of
there is no title of inheritance in the second; and the^®”*"
same of the second with respect to ^e third.
•
1 This additional book on inheritance is from a manuscript^y tlic
lato Lieutenant’Colonel John Baillie, who translated tho first volume
of the Digest of Imanieea Law, compiled under tlie superintendence
of Sir William Jones, and it is believed, for tho reasons mentioned
in the Introduction, to be a translation of a furtlier part of that •
digest.
* Included by the Shuraya under 8ububr--Ante, p. 261.— Ed. ^
824
INHEBITANOE.
Class first,
immediate
parents
and
children
how low
soever.
Parents
inherit
with
children
how low
soever, but
grand-
children
arc ex-
cluded by
children,
and great-
grand-
children
by the
former.
Any indi-
vidual of
this class
excludes
the two
following,
as grand-
fathers,
brothers,
and nnclcs.
The first
class in-
volves two
descrip-
tions : the
deceased’s
root, and
his off-
spring.
Of whom
neither
excludes
the other
from
succession,
becansc
proximity
of degree
can only
operate
exclusion
111 the first class arc included by law the father and
mother, or immediate parents onlyy of the deceased, without
extending to more remote ancestors, and his children,
extending to the lowest, as grandchildren, great-grand-
children, and so on, however remote in descent, with this
proviso, that of these the nearer always excludes from
succession one more remote in degree. Thus the father
and mother of a person deceased inherit with his children,
his children’s children, and his children’s children’s
children, and so on ; whereas grandchildren do not inherit
with the immediate offspring of the deceased, nor do great
grandchildren with the latter ; hut, on the contrary, each
degree of posterity totally excludes that more remote from
any title to succession. Further, no member of the two
following classes can inherit, whilst any individual, even a
female of this series, exists, and however remote in descent
such female may be. Thus, a grandfather of the deceased
cannot inherit with any one of the immediate parents, nor
of the children how low soever; and in like manner a brother
of the deceased is completely excluded by the existence of
any member of this series ; as are also all uncles both
paternal and maternal, whom we shall hereafter describe
as being placed in the third series of consanguineous
heirs.
The first class, as liay have been observed, comprehends
two descriptions, viz.,^first, the root of the deceased, which is
limited in number, as including only the immediate parents,
whose place in succession with children cannot be supplied
by ancestors more remote; and second, the iruncA or oflspring ,
of the deceased, which is unlimited in number and degree,
as comprehending children and children’s children however
remote in descent, obfiiprving always the rule of precedenco
by proximjty in degree, and thus supplying the place of
each *step in event of failure, by the next thereto in descent.
It is further, to be observed of these two descriptions, that
no member, even the nearest one, as a father, for example,
of the deceased, can exclude from succession the most
remote of the other as a great-grandchild; but, on the
contrary, this exclusion by proximity of degree takes effect
HEIBB BY CONSANGDINITY.
825
only where the heirs are of one and the same description,
like a son, for instance, or a daughter of tho deceased, who
necessarily excludes a grandchild from inheritance.
These principles of law are established as well by
unanimous consent of most of our doctors as by express
traditions of the two holy Imdms^ on whom bo peace,
reported by Zuram in these words: “Not one of the
creation of God can inherit with a child of the deceased,
except the immediate parents and the husband, or wife ;
should there bo no immediate children, grandchildren,
whether male or female, supply their place in succession :
those from a son inheriting tho share of a son, and those
of a daughter taking her portion of the inheritance ; and
bo those over so remote in descent, whether two or three
generations, or more, still they inherit the portion of
immediate offspring, and exclude from succession every
description of heirs that a child begotten by the deceased
would have excluded if in existence.” Further, by a repoi-t
of Bookeyr from the Imdni Mohummud Bdkir, on whom
be peace, in these words, “ no brother or sister even by the
full blood, and no brother or sister by the father’s or by tho
mother’s side, can take any part of the inheritance with the
father of the deceased.” Likewise by a decision of the
same Imam, quoted by Ahoo Bmeer in the case of a person
who died, leaving his father, patcriftil uncle and grandfather,
to this effect : “ The succession rests solely with the
father, and neither uncle nor grandfather can inherit any
poi't thereof.” Also by a tradition of this holy Imam,
recorded by Yiizeed Kwisay in these words : “ Your son
is preferred in succession to your grandson, and your
grandson excludes your brother.” To tho same effect ore
various other reports generally knpwn, in some of which,
however, a species of exception from the foregoing rules in
favour of a grandmother j only,* although nol positively
enjoined, would appear strongly recommended, viz. that
when tho
heirs are
of one
descrip-
tion.
Proof by-
tradition
of the
foregoing
principles.
A grand-
moUicr
may
inherit a
sixth with
the
immediate
3 Mohummud Bukir, the fifth Imam, and his son Jafer Sadik, or
the Just. * .
* According to the Shuraya the benefit of the exception extends
to the grandfather also.— p. 27Q.— -En.
326
INHERITANCE.
a legal
title.
Class ^
second,
remote
ancestors
and
brothers
parents, she shall receive a sixth part of the inheritance in cases
rwom-** where, from failure of childi-en, the portion of the immediate
mended as parent, her child, whether father or mother, is increased ;
Birt^not* to hewever, is to be understood as a gratuitous subsis-
virtnoof tence, and by no means in yirtuo of a legal title to
succession, from which, as we have already seen, all more
remote ancestors are entirely excluded by the existence of
an immediate parent.
The second class of consanguineous heirs comprehends
grandfathers and grandmothers of the deceased, how high
soever in degree of ancestry, and brothers and sisters and
their children however remote in descent, the nearest
and sisters, always excluding ono more removed ; — thus, a grandfather’s
fotoers cannot inherit with a grandfather or grandmother,
cxcladc and even a brother’s son has no title with a brother or
sister of the deceased ; a brother’s grandson is excluded by
^iZ>rs, as a brother’s or by a sister’s son ; and, in short, the an-ange-
Md sisterT respecting children and children’s children of the
nephews deceased, formerly explained, has a similar influence exactly
members of this class ; of which, farther, no individual
of prox- can possibly inherit whilst any member, even a female of
the first series, exists.
This second class likewise involves two separate
descriptions of heirs: ono comprehending all grandfathers
and grandmothers of tho deceased, how high soever in the
lino of ancestry, with application of tho rule of precedence
by proximity, to tho nearer first and then the more remote;
and tho olher including all brothers and sisters and their
children,- how low soever, always observing the same rule,
to each of To each of these descriptions there belong unlimited degrees
hcii^aro* a8C®ot and descent— thus, the degree of grandfiithers and
preferred grandmothers is nearer to tho deceased, and necessarily
®^®ludes that of their parents, and the degree in like manner
not mbotb of brothers knd sisters nearer than that of their children ;
owly!^* member of one description, even the nearest in degree,
can exclude even the most remote of the other from
imity of
degree.
Two
scpiirate
descrip-
tions ;
inheritance, bcc^se exclusion by proximity can pnly take
* effect amongst heirs that are of one and the same descrip-
tion, in the same manner as a child of the deceased, even
HEIBS BT eONSANQUINITY.
827
the most remote in descent, is not excluded by the existence
of both father and mother, or any one of them. For
example, a grandfather of the deceased, however near,
inherits with the immediate offspring of a brother or sister,
and their children’s children how low soever ; but docs by
no moans exclude them from succession ; and in like manner
a brother or sister of the deceased may be associated with
a great grandfather or grandmother however remote in ascent.
Upon this principle, if a brother dying should leave his
brother, his grandfather’s grandfather, and a brother’s or
sister’s son, the inheritance would bo divided betwixt his
brother and grandfather’s grandfather, and no part thereof
would fall to the nephew who is excluded in this example
by a nearer in dcgroo’of the same description. Upon the
same principle, were the deceased to leave a brother’s or
sister’s son, his grandfather and a gi'andfather’s father, the
property would in the case be divided betwixt the two
former, and no part whatever thereof could bo claimed by
the great-grandfather, ho being, in this example, excluded
by one nearer in degree of the same description of heirs.
Further, whilst any individual, whether male or female,
in whatever degree or descrijytion of this series, exists, this class
no member of the third or following class can have any
title to inheritance. following.
Those principles regarding thg second class of heirs by Tradi.
consanguinity are established not only by what has been
already stated in treating of the first, and by the general
assent of our doctors, but also by a judgment of the Imim
JAfer Sddik, on whom ho peace, reported by Ilumza Ehi
HvmrAu in the following words : “ I inquired respecting
Kviahit or distant kindred : he replied, * These inherit only
upon failure of children and parents * ” — ^likewise by a report
of IsmdiU JAfy in these words f— “I heard the Imim
Mohmnrmid Bdkir, on whom bo peace, declare,, that a
grandfather divided the inheritance with brothers of the
deceased, (fhat is, inherits with them,) their number
what it piay, even to an hundred thousand.” Further by
what is related of the Imdm JAfer SdAk, on whom be .
peace, by Abdn Ebn TughM, in these words : — I asked
828
INHEBITANCE.
regarding a brother’s son and a grandfather ; he answered,
* They divide the inheritance hy halves.’ ” Again, by a
decision of the same Imam, in the case of % person who
left his daughter, and a sister by the same father and
mother, viz., — “ that the whole property descends to his
daughter, and the sister inherits no part thereof.” By
another, in a case where the deceased had left a daughter’s
daughter and his brother, to this effect, — “the succession
is to the nearest of kin, viz, the grandchild only,” and by
a third, when the Im/m was interrogated respecting an
uncle’s son, and a gi-andfather, ho replied, — “ the whole
property goes to the grandfather alone.”
To the same effect are various other authentic traditions
generally known, which demonstrate tho association of
grandfathers with brothers in tho right of succession, com-
prehending as well the most remote as the nearest in
degree, with application always of the rule of precedence
by proximity in each, as laid down by express traditions,
which, whilst they require a preference to the nearest
grandfather in exclusion of one more remote, leave the
common right of succession in this description with that of
brothers perfectly established. Nor does it by any means
affect this principle of law whether a brother’s son, for
example, of the deceased, be in a more remote degree than
that of the grandfather in ancestry or otherwise, because
proximity of degree can only have effect where the heirs
are of one description, that is, in the same relation to tho
deceased, and by no means where their relation is different,
which is indeed clearly proved by the traditional report of
Ahdn, formerly quoted, directing an equal distribution of
inheritance by halves in the exact example before us of a
brother’s son and a grandfather.
Cto Under tho third class of consanguineous heirs are com-
nnlw and prehended brothers of the deceased’s father, brothers of
thS? the mother, and the sisters of both ; commonly known by
children tho characteristic appellation of paternal and maternal
uncles and aunt^; and upon failure of these, their children
• and children’s children, and so on, the nearest in descent
always excluding one more remote. Thus, the son of a
HEIBS BY CONSANaBlNITY.
820
paternal undo does not inherit with a paternal uncle or
aunt ; and in like manner the son of a maternal uncle is
excluded by .a maternal uncle or aunt.
This class, it may bo observed, involves only ono All form-
general description of heirs, because their title to succcs- floral
sion is derived from ono general relation to the deceased, descrip-
viz. that of brotliorhood or sisterhood to his parents, for
brothers and sisters we have already seen to be included in
one description of the second series ; and consequently all
persons connected by this tie must also be considered in
one and the same description, which, however, like the
former unlimited, possesses numberless degrees of proximity
and distance that are necessarily referred to in settling the
succession. Thus, a paternal uncle or aunt is obviously
nearer in degree to the deceased than the son of a paternal
or maternal uncle, and an uncle or aunt by the mother’s
side, nearer than the son of a paternal or maternal uncle Withont
or aunt. It follows, therefore, that with a maternal uncle tSwixt**”
only'of the deceased, or with a single maternal aunt, not
ono of their children, nor the children of a paternal uncle
or aunt, can have any title to inheritance ; and by the same
rule, if a paternal uncle or aunt of the deceased exist no descend-
part of the succession can go to their children, or to those
of a maternal uncle or aunt. In short, the rule of preference as well as
in succession by proximity of degree has an uniform influ-
ence over this desciiption of heirs, their children and
children’s children ad infinitum, with one only exception. With ono
which the general assent of all our doctors has ratified and in fevow
confirmed, viz. that the sou of a paternal full uncle * of ft®
excludes a paternal half uncle only of the deceased, and^cle'who
takes the whole inheritance preferably to the latter, although
nearer in degree, if the succession should be limited to from in-
these two ; and it is in virtue of this exception that, had the
Prophet of God, on whom and his posterity be blessing and
peace, left no issue at the period of his dissolution, his
whole succession must by law have devolved on the
— »
* That is, tho son of an undo who was fall brother to the
deceased's father by the same father and mother.
880
INHEBITAKOE.
Commander of tho Faithful Aly, on whom he the blessing
of God, in preference and complete exclusion of AVbass ;
for Ahoo Tdlib was the full brother of AhdooUa; both by
&ther’8 and mother’s side, and consequently his son, the
Commander of tho Faithful, although more remote in degree,
must have excluded Abbasa, half uncle . of tho Prophet, as
being brother to AbdooUa by the father’s side only.
Proof by The general principles of law first described regarding
tra^ions third class of consanguineous heirs are established in
general part by the reports and traditions formerly quoted, and
farther by a judgment of the Imdm Jdfer Sadik, recorded
by Aboo Buseer, in the case of a person who dying had
left an aunt by the father’s side, and also a maternal aunt,
to this cifect : — “ Two-thirds of tho succession to the
deceased’s paternal aunt, and one-third to his aunt by
the mother’s side.” Likewise by a tradition of the some
Imam quoted by Aboo Buseer in these words : — “ A
maternal uncle and aunt may inherit the whole property
of a person deceased, if there be none other nearer in
degree, as Almighty God hath declared 'Belatives by
blood are prefered in succession some of them to others.’ ”
Farther by a decision of tho Imam Mohummud Bdkir, on
whom be peace, recorded by Iloosein Ebn Huktm, in tho
case of a person who dying had left two maternal uncles
and his master, by whon>>ho was emancipated, upon which
tho Intfim decreed, applying the sacred text “Relatives
by blood are preferred,” “ that tho property is between
tho two uhcles.” Also by a report of Ebn Molmrez to
this effect, “ that ho put the case of a paternal uncle’s son
and maternal aunt to tho Imam Jdfer Sadik, on whom be
peace, and was answered, ‘ The property goes all to the
aunt.’ ” liikewise tho case of a paternal uncle’s son with
a maternal uncle, which was decided “ The whole inherit-
ance to^ihe dncle.” Farther, the case of a paternal ancle’s
son with the son of a maternal aunt, which was answered
in the words 6f the Kordn, “ To the male the share of
two females.” .^d, lastly, by the same Imdm, in tho
« case of a paternal undo and aunt, in confirmation of the
foregoing principles, we have the following decision : “ To
HEIBS BT CONSANGTIINITY.
881
the nncle two-thirds of the inheritance and one-third to
the annt.”
To the same effect arc many other authentic traditions Proof of
generally known, and with respect to the particular excep-
tion above described, in addition to the unanimous assent
of all our doctors, it is established by an express tradition
of the Imam Infer Sadik, on whom bo peace, recorded by
Ilooscin Elm Amaru in these words. “Tho ImAm, on
whom ho peace, put this question to me : ‘ Who is
preferred in succession to a person deceased, the son of
a paternal full uncle, or his paternal uncle by the same
father only ? ’ I replied that 1 had heard a tradition &om
the Commander of the Faithful to this effect : ‘ The sous
of paternal full uncles arc preferred to kinsmen bjr the
father’s side only.’ He observed, ‘ You have explained it
in a clear and obvious manner. Verily, Ahdoolla, father
to the Prophet of God, was full brother of Aboo Tdlih by
the same father and mother, whence the Commander of
the Faithful, as son of Ahoo Tdlih, had no issue of tho
Prophet remained, would have excluded Abbass, his uncle
by the same father only, from inheritance.’ ”
And hereupon a question has arisen whether the This
exception is by law restricted to the particular instance
before us without application to any other, or may be also to the
legally extended to all similar cases. The most common
and prevalent doctrine has restricted its influence to this described,
particular case alone, and the author of tho Shuraya has
expressly declared that if with these two persolis, viz. the
son of a paternal full *unole and a paternal uncle of tho
half blood, any other heir, oven a maternal nncle, should
exist, tho decision of law would be completely altered, and
the title of the uncle’s sou entirely cut off.
Upon failure of tho various degrees already mentioned
of this third class, viz. paternal and matenufl uncles and and mnw
aunts and their children, however remote in descent, the .
inheritance of a person deceased falls by law to the paternal goes to
and maternal uncles and aunts of his feflier and mother,
and after them to their children’s children how low soever, -gnmd-
observing always the rule of precedence by proximity and SSr
382
INHEBITANCE.
descend- arrangement conformable thereto, already so often described,
who* fonn denominated the second step of this third
the second series of consanguineous heirs, and if of them no individual
this sMics- exist, the inheritance reverts to paternal and maternal
after ’ uiicles and aunts of the deceased’s grandfather and grand*
ftc**i^at* whom to their children and children’s chil-
ijrand- dren, how low soever, observing the rule of precedence by
aunt^ proximity as above. These form the third step of this
forming series; and upon entire fiuluro of them the uncles and
step of^ aunts of a great-grandfather and grandmother succeed to
this series; the deceased ; after whom their children and children’s
upon children, and so on. These latter constitute the foui'th
whom the step of the senes ; and, upon the same principle, we may
suppose a further progression, (ul infinitum, which principle
father’s of law is fully established by the preference expressed in
almlr sacred text to “ relations by blood,” and by the universal
succeed, maxim of inheritance which places “ eveiy zoo ruhum, or
S^fourth kinsman, in the exact situation of that person
step. nearer to the deceased, through whom his relation is
derived.”
Full This leads us to describe the following three general
whether ’ respecting succession, to which it is particularly neces-
male or goiy that attention should be paid. The first of these is
that every person related to the deceased by both sides,
th^ther’s father’s and faother’s, in any degree of con-
side from sanguinity, excludes from inheritance a person in the same
uMelf in father’s side only, and this whether a male
the same or female, the latter being deprive^ of every title to succes-
degree, Thus, a brother, for example, or a sister of the
M brothers hy the same father and mother, excludes a
sisters, brother or sister being in the same degree by the same
father only. The saq^o principle likewise applies to
paternal uncles and aunts of the deceased, and also to
matenud uncles and aunts, provided they are in one and
the same degree of propinquity. Thus the son of a brother
by the same father and mother does not exclude a brother
by the same fiither only, because those degrees of relation-
' ship are different ; whereas the son of this latter, as in the
same degree, would he entirely excluded by the former.
GEKEIIAL BULKS OF SUCCKSSIOK.
338
A paternal uncle, again, related by both sides, meaning paternal
thereby a brother of the deceased’s father, by the same
father and mother, docs not exclude a brother of the
deceased by the same father only, nor even the son of such
brother ; but certainly excludes an uncle by the same father
only. Further, the son of a full patenial uncle docs not
exclude an uncle, whether paternal or maternal, by the
father’s side only, except in the particular case formerly
quoted, on which all our doctors are agreed ; but would, of
necessity, exclude the son of such uncle, as being in the
same degi'ee. If, for example, therefore, a person dying
should leave a brother by tho same father only, and a
sister by tho samo father and mother, tho brother could in
this case take no part of the inheritance, which would
descend entirely to the sister ; and this rule universally
applies not only to all brothers and sisters with regard to
each other, and to their childi-en in hkc manner, but also
to all patenial uncles and aunts with respect to each other,
and to their descendants ; and likewise to all maternal maternal
uncles and aunts, and to then: children, how low soever. “““If
It does not, however, we observe, apply to paternal but not
uncles and aunts, with regard to those on the mother’s proj»ise«-
• onslv
side, promiscuously, although these aro all, as already amongst
observed, included in one description of tho samo class or
series. Their general relation to the deceased, it is true,
as derived through one medium, viz. brotherhood with his .
father and mother, would appear to require the general
application of this rule without distinction to*them all, in
tho same manner as it applies to all those related by
brotherhood with the deceased himself; for of the latter a
full brother excludes entirely a sister by tho samo father
only, and rice versa, as has already been stated. This
objection, however, is removed v^en we consider that tho
relation of paternal and maternal uncles anlG aunts being
derived through the father and mother, or roots of the
deceased, betwixt whom, though equal* in degree, no
exclusion can take place, their shares oj ranks in succes-
sion being separate and distinct, it follows that these
ancles and aunts, related through them respectively, must
384
INHEBITANOE.
have likewise separate and distinct ranks in succession ;
and hence the mio of exclusion cannot operate pro-
. miscnously, notwithstanding their equality in degree. It
is therefore established by unanimous assent that a
paternal uncle or aunt of the deceased, being of the fiill
blood in manner above alluded to, does not exclude from
inheritance a maternal uncle or aunt of the half-blood only,
but certainly excludes another paternal uncle or aunt of
this latter description. In like manner, a maternal uncle
or aunt, who is full brother or sister to the mother of the
deceased, does not exclude a paternal uncle or aunt of
the half-blood only, but would certainly exclude another
maternal uncle or aunt who bore only this imperfect
relation.
For example, if a person dying should leave a paternal
half-uncle and a maternal full aunt, no exclusion hero
taking place, the former would inherit two-thirds of the
property, and one-third thereof would descend to the
latter. Again, if ho should leave a maternal half-uncle
and a paternal full aunt, the division of inheritance would
be guided by the same rule, viz. to the former one-third,
as deriving his title from the mother, and two-thirds to
the latter; for it is reported by Aboo Ayoob, from the
Imdm Jdfer Sddik, on whom be peace, to bo written in
the book of Aly, on whont be blessing and peace, “ That a
paternal aunt is by law in the exact situation of a father ;
a maternal aunt in that of a mother ; and, in general, every
distant kinsman in the situation of that relation more near
through whom his title is derived.”
Proof bj The principle of exclusion by double tie or full blood
traditions, jeiationg^ip ig established by the following tradition of the
Imdm Jdfer Sddik, recorded by Yuzeed Kumsy in these
words; — “Your full brother by the same father and
mother <8 preferred to your half-brother by the same
father only ; and also the son of your full brother is pre-
ferred tq ^e son of your half-brother only ; your paternal
uncle, the full biother of your father, to your paternal
‘Uncle his brother by the same father only ; and the eon of
such patenud full unde to the children of a pater^ half-
OENBBAL BOLES OF SUCCESSION.
335
uncle only.” Likewise, by a tradition of the Commander
of the Faithful, quoted by Harm in these words : “ Surely
kinsmen by the same father and mother shall inherit in
preference to kinsmen by the same father only.”
The second general rale regarding inheritance to beM
described is, “ That every person related to the deceased
by both sides, viz. the father’s and mother’s in any degree
of consanguinity, excludes a person having the same rela- only from
tion by the mother’s side only from all title to the residue
or surplus of an estate after distribution of the shares, but
not from his appointed sliare of inheritance, provided they
are both in the same degree ; ” for a paternal uncle having
this full relation does not exclude a sister of the deceased
by the same mother only, cither from her residuary title or
her appointed share, by reason of their disparity in degree.
As an example of this general rule, if we suppose the
case of two sisters of a person deceased, ono his full sister
by both parents, and the other his half sister by the
mother only, the appointed share of the former being a
half, and of the latter a sixth as one, or a third in the
event of plurality, which leave a surplus of a third .in
the first case, and a sixth of the estate in the latter, this
surplus or residuum would go exclusively to the full sister,
in addition to her share, and no part thereof to the other.
Again, if we suppose two brothem of the deceased, one by
the same father and mother, and the second by the same
mother only, the latter, as one in this case, receives only
a sixth, or a third, in the event of plurality, viz. his
appointed share of inheritance, and all the residue thereof
goes to the full brother. The rale is exactly the same
with respect to children of brothers and sisters, and to
paternal and maternal uncles and aunts and their de-
scendants in the order so often adverted to.
Such, at least, is the most common and prevalent
doctrine amongst our lawyers, of whom manv have asserted
its confirmation by generid assent, seeing that the de^ciency
or loss by defidcation of an estate, however occasioned,
must invariably affect the relation by both sides ; and conse- *
quently the surplus or residmm after the distribution of the
836
INUEMTANCK.
appointed shares should in justice bo applied to compen*
sato their loss. For example, if we suppose, together with
a full sister and ono by the mother only, a husband also,
or a widow of the deceased, to exist, the full sister can
only receive what remains of the estate after distribution
of the appointed shares to the other two ; and thus, as
the husband, for example, is entitled to one-half of the
whole property, and the sister, by the mother’s side, to
a sixth, there remains only a third for the full sister, who
consequently, in this example, suffers a deficiency of
one-sixth in her appointed share of succession. There
is, besides, an express tradition of the Commander of the
Faithful, upon whom bo peace, in confirmation of this rule
recorded by Ahoo Omar al Ahdij, in these words : —
“ Brothers or sisters by the mother can never inherit more
than a third, nor can their share be less than a sixth."
As do also It is further to bo remarked that a poi*son related by
reiXd by father’s side only supidies the place ef a ftdl kinsman
the father’s upon failure of the latter in all cases, and therefore excludes
those related by the mother’s side from all residuary title,
in like manner as the former. This is agreeable to the
doctrine of Siidook and most of our lawyers, because the
full kinsman and ho by the father’s side only, on failure
of the former, suffering alike the loss or deficiency, tliey
ought in justice to hav<r) a similar exclusive title to the
residuum or surplus. Besides, there is a positive judgment
to this effect of the ImAm Molmmmud lidkir, on whom
bo peace, quoted by Mohummud Ebn Mooslim, in these
words : — “ 1 inquired respecting the son of a sister by the
father’s side, with the son of a sister by the same mother
only. He replied, ‘ To the latter a sixth, and all that
remains to the former.’ ”
A person The third general ihaxim alluded to is, “ That every
^ations^” person Jbavifig two different relations to the deceased of a
docs not nature whereof one impedes not the other, does not exclude
hfm”*** ® person havihg only one relation, provided it be in the
having same Hcgree -; but the former receives two portions of
RMivw a* inheritance in v^ue of his double title, and the latter
twofold has only ono portion in virtue of his single relation.”
OBNEBAIj nuiiES OF SUCCESSION.
337
This principle is ratified by unanimous assent without portion
any difibrenco of opinion, because exclusion from inherit-
anco is founded by law on the disparity of degrees in pro-
pinquity and distance, and by no means on the unity or
plurality of relationship.
If, therefore, a person deceased should leave one
maternal uncle, and a paternal undo who is also uncle
by the mother’s side, tlio maternal uncle would receive
first a third of the inheritance, the paternal uncle as such
alono would inherit two-thirds ; and further, in virtue of
his relation by the mother’s side, would bo entitled to half
tho portion first allotted to the maternal uncle ; in reality
tho latter’s portion would bo only one-sixth of tho estate,
and five-sixths thereof would go to tho fomer, in the same
manner as if the deceased had left one paternal uncle and
two uncles by tho mother’s side, because each of the sides
by which the first is related founds equally a title to suc-
cession,' as is clearly proved by tho absolute terms in
which tho various traditional documents to this effect are
convoyed.
To illustrate tho possibility of those two relations being Exwnplo
combined in one person, let us suppose that Zmjd, for
example, marries Tiilha, who is half-sister to his half- nadon.
brother, cither by tho father’s or mother’s side, but in
such manner as that no relatioir subsists between tho
spouses : that Ziiyd has a son by a former wife, and Tidha
has had a daughter by a former husband ; these two inter-
marry, and have a son named Oniur; Zvyd ^so has a
son by his wife Tidha, whom wo shall call Bukur. Now
this Bukur is consequently paternal uncle to Omur, being
tho half-brother of his father, whilst he is also maternal
uncle, being half-brother by the^ mother’s side of his
mother.
But a more simple and obvious example* occurs in
supposing any person whom wo shall name Zuyd to have
a half-brother by the father’s side, and a half-sister 1^ the
mother’s, and these two to > intermarry, ^n which event
Zuyd is manifestly both paternal and maternal uncle to all *
the offspring of that marriage.
PAET n.* z • *
838
INIIEIUTANCE.
exclude
them: the
former a
half or a
fourth,
and the
latter a
fourth or
Of Inheritance by Affinity.
Mairiage. The second cause which operates in law a title to
succession is affinity or marriage, by virtue of which a
surviving husband and wife enjoy respectively a definite
nniTcnally and fixed share of the deceased spouse’s inheritance, nor '
^d^^are either be excluded from that share by any heir what-
of inherit- soever ; but, on the contrary, they are associated and
inherit with every class and description of heirs, whether
heir can by consanguinity or patronage, and this by unanimous
assent, agreeable to the word ol Almighty God : “ And
for you is the half of what your wives shall leave if they
have no issue ; but if they have issue, then ye shall have
a fomih part of what they leave after the legacies they may
bequeath and payment of their debts. They also shall
a.1 eighth, inherit the fourth of what ye shall leave in case ye have no
issue; but if ye have issue, then they shall receive an
eighth part of your inheritance, after the legacies ye may
bequeath and payment of your debts.” Further, there is
a tradition of the Imdm Mohummud BAkir, upon whom bo
peace, quoted by Ahoo MUtsA in those words ; ” Verily,
Almighty God hath included a husband and wifo amongst
every description of heirs, and their shares of inheritance
can, therefore, never bo less than a fourth and an eighth of
the property.” Another tradition of the same IinArn is
reported by Mohummud Ebn Mooslim in these words : “ A
husband can never receive less than a half, if there bo no
issue, nor can the share of a wife be less than a fourth, if
there be no issue; but if there should be issue, the
husband in this case takes a fourth, and the share of a
widow in this event is an eighth of the property.” To the
same effect are many other authentic documents.
Thus, a husband and wife have each their appointed
shares* of inheritance in every possible situation, and the
remainder of the estate, only after payment of these,
descends to the other heirs, whether by consanguinity or
patronage, if such exist; if otherwise, as where a wife
may die leaving no heir of any description, save her
husband, and the succession is thus limited to him and
HEIRS RY AFFINITY.
339
tho ImAm or public treasury, the husband in this event Ahusbani
takes not only his appointed share, viz., a half, but has ^“(£7
also a residuary title to the remainder. Such, at least, is title in
the most common and prevalent doctrine, which, further,
the two Shaikhs,^ as well as Suyd Moortuza, have declared P“i>iic
to be incontestable, by reason of an authentic tradition
related by Aboo Bmeer in these words : “ I was present
with the Imim Jdfer Sudik when he assembled the people
to prayer, and was informed of a woman’s decease, who
had left her husband, and no other heir. He replied,
‘ The property goes all to her husband.’ ” And another
decision of the same Imdm, in the case of a woman who
loft her husband, and no other relations known, viz., “ The
succession is for the husband entirely ; ” as well as several
other authentic documents to a similar effect.
It is otherwise in the case of a husband’s decease leaving A widow
no heirs of any description save his widow, for she receives residuary
only her appointed share, viz. a fourth part of his pro- lide. .
perty, and the remaining three-fourths go to the Imdm or
public treasury, as a widow has no residuary title in any
situation whatsoever, according to the most prevalent
opinion, and to a positive judgment of the Imdm Mohum-
mud Bdkir, on whom be peace, quoted by Mohummvd Ebn
Mooslim, in the instance of a man who died leaving only
his widow, to this effect : “ She* receives only a fourth
part, and tho residue goes to the ImAm." To the same
purport are several other authentic documents^ and tho
distinction between, a surviving husband and a widow is
farther expressly confirmed by Allamee in his Tuhreer, by
the Martyr in his Loomm, and likewise by the Shaikh.’’
It is a prevalent opinion amongst all our doctors, that
marriage contracted in sickness or jipon deathbed does not
found a title to inheritance in the widow ,* th|t deathbed
divorce, on the other hand, does not operate her* exclu-
sion ; and, farther, that temporary marriagej, or contracts
* SkaWt Aboo Jafer Tooty and Shmih Moofeed.
1 Aboo Ac^er Tooty.
840
INHEBITANOE.
of Mootd, by no means ostablisb a title to succession in
either of the paiiiics. To illustrate these principles of law,
the following three sections are requisite : — '
Section Fibst.
Deathbed If a sick man contract marriage with a woman, whether
distemper bo dangerous or otherwise, and dio of that
rioKc if distemper, without intervenient recovery or convalescence,
Hiimmatcd pi'cvious olso to consummation of his nuptials, such conti'oct
limnd no marriage is thereby null, or in other words, is not con-
hcritanee. sidered to be established in law, until consummation, or
recovery of the husband from that disease with which ho
was afflicted at the time. It follows that in tliis caso there
can be no title of inheritance between the parties, no dower
even incumbent on the husband, and that the woman is not
bound to observe an Iddut or term of probation. This law
of annulment of contracts entered into by parties legally
qualified to contract, without divorce or voluntary dissolution,
may certainly at first sight appear irreconcilable, but all objec-
tion and doubt is removed necessarily by a reference to those
authentic proofs of their nullity, already detailed in the book
of marriage.*
If the If, on the other hand, the contracting party should die
consnm- of any other complaint* or of that same distemper after
mates or intervenient recovery, or after consummation of his marriage,
the contract is, in this case, valid and binding, consequently
diesThe*** succession fully established beyond the possi-
right of bility of doubt by reason of the absolute and comprehensive
anc®"^ sense of the sacred text already quoted, and the particular
established traditions establishing, in this case, the validity of contract
which were formerly referred to in treating of marriage.*
If the wife If, again, the woman should die previous to consum-
should die
‘ This^Boot, which was probably added to the Digest compiled
under the superintendence of Sir William Jones, by the translator,
was never publisffed, and has not been found among his papers
which have come to my hands.— Ed.
^ See last note.
HEIRS BY AFFINITY.
341
mation of the marriage with a man who was sick at the the
period of contract, and notwithstanding survives her, his ,5^
right of inheritance is liable to difficulty and doubt, arising,
on the one hand, from the validity of contract, which, if
allowed, gives room for the application of the sacred text ;
and, on tho other, from a consideration that its validity is
suspended upon recovery, or consummation of the husband,
neither of which is in this case established. Tho first
suggestion, however, appears the stronger, as, from tho
husband’s survival, in whose prior death alone, mthout con-
summation or recovery, tho objection to validity of contract
could in such cases occur, there appears full ground for tho
application of the sacred text regarding inheritance by
marriage.
Upon this principle, further, if awoman on her deathbed, as also
or whilst afflicted with any distemper, should contract herself
in marriage to a man in health at tho time, but who dies hcrsclf in
ivithout consummation, and she thus suiwivcs him, the*'®'?"®*®
contract is perfectly valid according to tho best authority, vives, her
and tho right of inheritance fully established, which doctrine
both Alldma and the Martyr have approved. Tho various is cstn-
argumonts and further examples connected with this subject '''‘*''®‘'’
may bo found at largo in tho “ Book of Marriage.”
Section Second.
If a husband divorce his wife upon deathbed or whilst Deathbed
afflicted by any distemper, of which, without Jhterveniont
recovery, ho afterwards dies, such divorce has no operation cat off the
in law to deprive the widow of her right of succession,
unless a full year shall have elapsed from tho date thereof nnlees a
until his death. Or that she herself in tho meantime have e^^t*****
married another. If, on the contrary, tho husband survive a
full year from the date of divorce, or recover *of that dis-
temper, and afterwards die within the year ; or the widow
herself has daring his illness taken anothdi: husband : in
each and all of these cases, she has no title whatever to
inherit any part of his property.
This principle is established by various authentic Proof.
842
INHERITANCE.
traditions generally known, of which one is reported by
Ahoo Ahass from tho Inuim Jtifer Sddik, on whom bo peace,
in the following words: —
If a man divorce his wife whilst in sickness, she is still
considered as having a right to inherit whilst he continues
in that sickness, even after her Iddut has elapsed, should ho
not recover therefrom.” Tho reporter thus proceeds : “ I
i,nquired what if his distemper should bo prolonged ? He
replied, ‘ She inherits although it should last for a year;/ ”
or, as this answer has been convoyed by another reporter,
“ She inherits if he should die of that distemper during the
influence of which he divorced her without intervenient
convalescence.” A further judgment of the same Imdm is
recorded by Abdool Rulmau Ehn Ihtjjaj upon the question
of deathbed divorce to the following eflect : ” Should tho
husband die of that disease and tho w'oman have continued
single, she enjoys her share of his succession ; but should
she marry another person, as this clearly demonstrates her
satisfaction at what he has done, she can have no claim to
inheritance.” This decision is reported by Suiruia in a
manner somewhat diflering from the above, viz. : ” She
inherits as long as sho continues in her Iddut {i.c. docs not
marry another), and if he has divorced her with an intention
to injure her by depriving her of this title, she inherits
although he should survive a full year ; but if beyond this
time even a single day, sho has no longer, in any event, a
claim to inheritance.” In another report it is expressed
that the following question was particularly put to the
Imtim : — “ What is tho longest term of sickness during
which the right of a divorced wife to inherit may bo
preserved ? ” and this answer is also recorded : “ that
tho husband shall continue ill thereof until he dies, and
that witliin a year.” *
AnQther*'tradition of the Inuim Jdfer Sddik, on whom
bo peace, as recorded by Yoonm Ebn Yakooh in these
words : — ” I ihquired of him the cause why a wife when
divorced by her ^husband in sickness with the intention
to injure her should, notwithstanding, enjoy. her portion
of inheritance, whilst tho husband, should he survive her
HEIBS BY APFINITY.
848
after divorce, has no title whatsoever to her saccession.”
Ho replied, — “ That intention to injure is itself the mani-
fest *cause ; for as the husband, conceiving himself to be
on deathbed, thus attempts to deprive his wife of her
inheritance, the right is protected and secured by law as
a punishment for his unjust attempt.”
In consequence of this report a question of some diffi- Distinc-
culty has arisen, viz. whether the right of a wife in these
cases of divorce depends upon the suspicion of intended divorce
injury by the husband; or whether it is a consequence
of deathbed divorce alone, even although the suspicion to injure,
bo obviated. A majority of our lawyers have adopted the
latter opinion, founded on the absolute and general sense consent,
of most traditions upon this subject ; but the Sheikh, in
his Estnlisdr, has expressed a decided preference of the
former doctrine, on account of the particular cause assigned
in some traditions as above, &om which it may be obviously
inferred that if the suspicion of injury be removed, as where
a wife solicits her own divorce, she can have no title to
inheritance. This opinion is further strengthened and
conlirmed by a report of Mohnmmiid Ehn Rasem froni the
Imdm Jdfer Sddik, on whom be peace, in tho following
words : — “ No woman who solicits and obtains her own
divorce, whether by klmld or paying a compensation,
by mdbaraat or mutual release, or in any other mode, at
her own request, from her husband in sickness, can in-
herit his property if he dies, because all connection and
mutual regard betwixt them is thereby dissolved.” And
doubtless such transactions as these have an obvious effect
to remove all suspicion ‘or reproach against the divorcer,
whose act, on the contrary, under such circunostances, can
only be considered as proceeding upon the wife’s consent
and acquiescence in the surrendSr of her rights ; conse-
quently the general sense of those traditions al]j;.ded to,
must be restricted by this latter, nor are they by any
means difficult to be reconciled. . *
At the same time the obvious me^hg of all traditions
recorded upon this subject must lead us to consider death-
bed divorce as iiuproper dnd highly nnbeconiing in a hus-
344
INHEBITANCE.
• band, from its tendency to injure as depriving his wife of
her right of inheritance, although such act of divorce is
valid in law, and entitles the woman to marry again ftfter
lapse of her iddut. Should she avail herself of this privi-
lege, and should the husband’s illness bo prolonged above
a year, or should ho recover for a period and die of a new
distemper, in all and each of these cases there is no right
of inheritance betwixt them ; whereas in every other case
a wife divorced upon deathbed takes her share of the hus-
band’s succession, provided she observe the appointed iddut,
or term of probation and abstinence after his death.
A hnsband All that has been hitherto observed proceeds, however,
cWm'to solely on a supposition of the husband’s death after irro-
from awifo divorco of his wife. If, on the other hand, the
irrcreiv wife should die after the divorce, there is no difficulty
rorMcl* in pronouncing the husband’s total and universal
want of title to her succession, provided the divorce was
irreversible, in the same manner as our doctors have agreed
that reversible divorce, should the wife die before expiration
of her iddut, does not debar her husband from inheritance.
But n Tc-^ because a woman repudiated by a reversible divorco is still,
voiw dc«8 “ considered a wife, as long as she continues in her
not pro- iddut : and, consequently, the right of inheritance continues
established betwixt them, whether he or she dies first;
xncceasioo. which principle is further confirmed by an authentic tradi-
tion of the Imdm Mohummud BuMr, on whom be peace,
quoted by Ztirara, in these words : — “ If a man divorces
his wife they are still the heirs of each other, so long as
she continues in her iddut ; but should he repudiate her by
three divorces, he can never after return, and there is no
longer inheritance betwixt them.”
, Sectioh Thibd.
€■
Tempo- There is no right of inheritance betwixt persmis con*
mar- necte j in temporary marriage, or under a contract of mootd,
^^t&, according to the most general and prevalent opinion^ because
name of umfe does not in reality apply to a woman
beritance. contracted in mootd, for of these a man may lawfiilly
HEIBS BY WULA OB PATBONAOE.
&45
possess moro than four at a time, agreeable to a report
of Ahoo Bmeer from the Imdm Jdfer Sddtk, on whom be
peadb, in the words : — ** I inquired respecting women con-
tracted in mootd, whether their number was restricted to
four. Ho replied, ‘ No ! nor to seventy ; ’ ” whereas of wives
it is universally agreed that their number cannot exceed
four. Since then it appears that these women ore not in
reality wives, it follows that they cannot be included in the
law of marriage, nor comprehended in the sense and inten-
tion of the sacred text already quoted. Besides, we have
an express tradition of the Imdm Jdfer Sddtk, on whom
bo peace, to this effect, quoted by Sdeed Ebn Ytihar, in
the words : — “ I inquired regarding a woman who contracts
lierself in mootd without stipulating the right of inherit-
ance. He replied, ‘ There is no such title betwixt them,
whether it be stipulated or not.*" To the same effect are
various other authentic traditions generally known, of which
one is quoted by Foozeyl Ebn Yusdr, from the Imdm Jdfer
Sddik, on whom be peace, in these words : — “ I asked
respecting a woman contracted in mootd. He replied,
‘ She is one of your female slaves.’ ” Another tradition
of the same Imdm is in these words : — “ Connection “ with
women is of three sorts : one establishing the right of
inheritance, which is that by permanent marriage ; one •
that does not establish this title,«viz. mootd ; and, thirdly,
milk ool yemeen,ot property.”
Of Inheritance by Dominion or Patronage.
The third cause described in the opening of this book Wula, or
as founding in law a title to succession was Wvla, a term
of various application, but signifying in this place the
connection of one of two persons with the other, produced Of three
first by emancipation from slavery^ second, by responsibility
for crimes, observing, however, tUs order in succession; and inhe^ting
thirdly, upon failure of these two descriptions, bestowing
a title of succession upon the Imdm or public treasury f^ue of
at his disposal, who is by law the heir of every person ^®P”*“**
Literally, Pudenda Muliemm.
846
INHEBITANCE.
deceased having no heir besides, and thus may be con*
sidered in the third class or degree of succession hy Wula.
Bntneiihor It is scarcely necessary to remark that no r%ht of
kMod^ inheritance can bo founded on this title except upon entire
and absolute failure of all connections by blood ; and that
whilst of the latter any individual, however remote, exists',
no matter if an enfranchised slave, no patron or surety
for offences can claim any right of succession, nor can
this right by any means devolve on the Imdm. This
principle is established by unanimous assent, both on
account of the sacred text, “ Eolations by blood are pre-
ferred,” See., and of a tradition repoi’ted by Juher Ansary
from the Imdm Mohummml Bdkir, on whom be peace, to
this effect, “ The Commander of the Faithful Aly uniformly
bestowed the inheritance of persons deceased upon their
blood relations in preference of manumittors and patrons.”
Also of a tradition quoted by Mohummnd Ebn Keys from
the same Imdm, in these words : “ The Commander of
the Faithful, on whom bo blessing and peace, was appealed
to in the case of a maternal aunt who disputed with the
master of a freedman deceased regarding his succession,
upon which, pronouncing aloud the words of the sacred
text ” (above quoted), ** he adjudged the whole inheritance
to the aunt, excluding the mannmmittor entirely,” to
which effect there are many other authentic traditions
generally known.
Under this third title of inheritance there are three
classes of heirs to be considered ; and, first.
Of the Wula of Manumission.
Themimn* The inheritance of a freedman or enfranchised slave
particularly ordained by law to descend to his mann-
freedman, mittor, or the person who hod set him free, but by no
means t}iat bf the latter to the former according to the
to his most prevalent opinion, on which the Sheila has even
^nmit- pdssibility of doubt by reason of various
authentic traditions, particularly that recorded by HuJby
, and Mohmmvd Mm MoosUm from the Imdm Jdfer SddAk,
on whom bo peace, in those words: "The Prophet of
HEIES BY WULA OB PATBONAGE.
847
God hath declared that the * Wula of a slave belongs to
the person who emancipates him ; ’ " and another of still
more obvioas effect recorded from the Prophet in these
words : “ Verily Wala is to him only who emancipates.”
Because the restrictive sense of the word only applied in
this tradition clearly proves tho exclusion of him who has
not emancipated or the person set free. Further, it is
recorded by SaUl Ebn Dinar as part of a discourse upon
rights and duties by the fourth on whom be peace,
that he thus expressed himself, “ But with regard to your
slave whom you have benevolently set free, know that
Almighty God will render his ransom a medium of your
approach to Himself, and of your salvation from the fire
of hell, that your reward in this life is his inheritance
should he have no relation by blood, as a compensation
for your loss of property, and heaven in the life to come.”
Besides, a title to inheritance can only be established
by a legal cause in law, and there is obviously no cause
in law why a person already benefited by obtaining his
freedom should be heir to his benefactor, whence a
manifest distinction occurs betwixt the right of inherit-
ance by blood and marriage where the parties are recipro-
cally heirs to one another, and that by Wvla when the
title is limited to the benefactor alone.
In cases, however, of mutual Wvla betwixt twooaseof
parties, mutual or reciprocal succession may necessarily
be established by reason of the existence of a legal cause,
viz. manumis sion on both sides ; and thus if a freedman
should purchase the father of his emancipator and set him
free, such fireedman might necessarily inherit fix)m tho
father of his benefactor, in the same manner as the latter
would be heirs to the freedman.
Li order to establish the right of inheritance by emanci- cmoii-
pation, certain conditions are imposed by latr. pf these,
the first is that it should be a voluntary and gratuitous volnntaty.
act, not urged by necessity or legal obligation of any sort.
Thns, if a person emancipate his slave through necessity.
” Zeyn ool Abedm, sumiuned Sujjad.
348
INHEBITANCK.
as an atonement for a crime, performance of a vow, and
the like, or if a slave become free, sui juris, as where
maimed by his master, infected by a pestilential disease,
or by relation to his master within the prohibited degrees,
all these modes of emancipation constitate the slave what
is termed in law a Saeeha, and by no means establish the
right of Wvla in the master ; but on the contrary, of such
freedmen the hndm is solo heir, should they have no
patron or surety for their offences, in which event the
patron’s right of inheritance is preferred.
Tradi- This principle is demonstrated by several authentic
p^of traditions, of which one is reported by Eln liiibab in the
this condi- following words : — “ I asked the Ividm Molmmmud Bdkir,
tion. Qjj jjQ peace, respecting Sdeebas ; ho replied, ‘ Observe
in the Koran wherever the freeing of a slave is enjoined,
and every such slave is in law a Sdeeba over whom there
is no Wula (i. e. no right of inheritaneo,) to any person
save God, and whatsoever appertaineth to God belongs of
necessity to the Prophet, after whom to the Inidm, who is
therefore liable for the fines or offences of such slave, and
consequently takes the inheritance.’ ” To the same effect is
a report of Omar Ebn Aly Ahwas, from the same Im'm,
on whom bo peace; but the general law expressed in both
these, as well as in many other similar traditions, for
vesting succession in the fmdm, must obviously bo limited
to such cases whore no individual has taken upon himself
responsibility for the slave’s fines or offences, which
restriction is indeed fully established by several other
documents.
The above condition is farther supported by a tradition
of the Imdm Jdfer Sddik, on whom bo peace, quoted by
Ilashemy in these words : — “ I put the case of an omanci*
pated slave, inquiring the extent of his freedom and
whether ho ceuld nominate whom he pleased, his patron
or heirf The Imdm replied that if emancipated gratuit-
ously and voluntarily for the sake of God, the emancipator
is still his patron and heir ; but if created a Sdeeba he is
entirely at his owit disposal, and may constitute whom he
pleases his heir;” that is, in other words, if a master should
HEIBB BY WUIiA OB PATBONAGE.
849
voluntarily, with a pious intention, liberate his slave, he is
the patron and heir of that freedman, unless at the period
of emancipation ho should disavow and renounce all future
responsibility for his fines or ofibneos ; in which case any
other person taking upon himself this responsibility is the
heir, as will hereafter appear ; but should the manumittor
continue responsible he is still tho heir of his freedman.
To tho same oficct is a tradition of tho Imdm Mohummud
Bdkir, recorded by Aboo Ihiseer in these words : — “ Tho
Commander of the Faithful, on whom be blessing and
peace, passed judgment in tho instance of a person who
hod maimed his slave, that such slave is thereby absolutely
free, his former master has no authority over him what-
soever, and he is Sdeeba, may go where ho pleases, and
may constitute whom ho pleases his patron, such person
becoming liable for his fines or offences, and eventually
inheriting his property under this latter title, not by tho
right of manumission.”
This doctrine is further confirmed by the obvious sense
of his saying, on whom bo tho blessing of God, Wvla is
for him who emancipates, because hence it is evident that
tho act of tho manumittor establishes this title, and con-
sequently tho slave’s emancipation sui juris, or by a
necessity of law, cannot possibly found a claim thereto.
The second condition required to establish inheritance ^ancipa-
by emancipation is : “ That the manumittor shall not have
(lualified his act witli a renunciation of all future rosponsi- *’7
A ^ rcniixiciii*
bility for the freedmon’s fines or offences ; ” because should tionof
ho declare himself absolved of these he can have no further
troDugo or
claim of Wula whatsoever against the freedman byliahiiit/
unanimous assent of all our doctors ; but, on the contrary,
who ever becomes responsible is tho heir; and of coarse
the succession is vested in the IhAm, as is demonstrated
by the report of Hashemy above quoted, and*by qnother of
Aboo Rooba from the Imdm Jdfer Sddik, on whom be
peace, in these words “Being asked reg&rding a Sdeeba
or absolute freedman,” he replied, “As where a mnn
emancipates his slave, saying. Go wherever you please, X
have nothing to do with your inheritance, nor am I here-
850
INHBBITANCE.
after liable for yonr offences ; and calling two witnesses to
witness his renunciation.”
]^nmicia- To the same effect there are also other authentic docu-
W to in- hereupon a question of some importance has
hcritance arisen amongst our doctors, viz. “ Whether or not it is
necessary, in order to do away the right of wvtla in
that wit- a master by renunciation of responsibility, that ho shall
adtotoi called evidences to witness his release ?” The opinion
of the Sheikh, as well as of Sadook and of Askafy, would
lead us to consider this evidence as indispensable to the
validity of the master’s renunciation, as is the case in
declarations of divorce, and which is doubtless also appa-
rently intended by the sense of the foregoing and other
similar traditions ; yet it is by far the more general opinion
that adducing of evidence is required merely to establish
the master’s release where alleged in disputes with third
parties, and by no means to the validity thereof, as doing
away the right of inheritance. This latter would appear
also the best supported doctrine ; for the intention of those
traditions in directing evidence is that, since the establish-
ment of release from responsibility before a judge neces-
sarily depends upon proof by the claimant, it is proper
that the master should bo prepared by having called wit-
nesses at the time, lest ho be afterwards subjected for the
consequence; but not by any means that the validity of
his renunciation as a personal bar to inheritance is sus-
pended upon this form ; and to this effect wo have many
documents dh traditional record.
The freed- Thirdly. It is an obvious indispensable condition of
hm inheritance by manumission that the freedman shall leave
blood reia- no consanguineous heirs, because these have a necessary
lifiedto*" P™f®*®noo in law over every description of claimants ly
inherit, wvla, as has already been^particularly detailed from egress
tradition^. With respect, on the other hand, to the exist-
ence or ftulure of relations by affinity, this is no conation
by unanimous 'assent ; for these may bo associated and
inherit with heirs of every description, as has already been
.observed in treating of inheritance by marriage. Thus, if'
an emancipated slave should leave either a husband or a
HEUtS BY WDM OB PATRONAGE.
851
wife, these tahe their appointed share of the estate, and the
remainder goes to the manumittors.
The fourth condition required by law to establish the If any of
title of succession by emancipation, is, “ That none of the
parents of the freedman or freedwoman shall have been
originally a free subject; because if one of the parents
was originally free, the children are by law dependants of If «/o.
upon that one in original freedom, and consequently there
can be no emancipation of them, nor any right of wida
in the emancipator of their other parent. This principle
would appear to be established by the unanimous assent of
all our doctors, although certainly contradicted by a tradi*
tion to bo hereafter quoted as on record by Ayees Ebn
Kasim, and to which, therefore, we now refer.
If, however, all those conditions required in wida
should exist, the manumittor, whether mole or female, one
or more, invariably succeed to tho property, of their eman-
cipated slaves, and this without any dispute or difference
of opinion by reason of the various traditions already
quoted, and many others to a similar effect. Upon failure,
again, of tho immediate manumittor, tho settlement of
succession admits of more difficulty, and has given rise to
a variety of opinions. The Sheikh, in his Nehdyut, and
others who follow his doctrines, have declared that tho
inheritance in this case descends to the male children of
the manumittor, but not to tho females ; and on failure of
those, to his dsbdt, or those paternal male relations who
are his akUas, i.e, liable for tho payment of (til fines that
may be imposed upon him by law for offences committed
through error or misadventure. These are his brothers by
the same father and mother and by the same father only,
paternal grandfathers and paternal uncles and their sons,
both full uncles and those by the*samo father only. This,
however, upon the supposition that the manftmittor was a
man. 'Where, on the other hand, a woman emancipates
her slave, his inheritance, should she die bbfore him, goes
to her dsbdt, or paternal male kindred above mentioned, in
preference and exclusion of all her childron, whether wala
or female, who have no portion whatever.
ginally
free, there
is no title
862
IKHEBITANOE.
This doctrine of the Sheikh’s is the best and most
approved of all the various opinions recorded on tho
subject, and is cenfirmcd by many authentic traditions
generally known. Of these, one is reported by Booreyd
Ajaly, in tho following words, from the Imdin Jdfer
Sddik, on whom be peace : “ I stated tho caso of a person
who hod resolved to emancipate a slave, but dying before
he could execute his intention, directed by will that
his son should perform it. The son accordingly purchases
a slave, and sets him free, in name of his deceased parent.
Should this freedman die heaving property, who is his
heir ? Tho Imdm replied, ‘ If the emancipation resolved
on by tho father was voluntary, so as to establish the right
of Wida, and ho directed the son to perform it in his
name, tho inheritance of such freedman descends in
common to all the male children of tho deceased, and this
particular son, who has purchased and emancipated by tho
father’s command, is merely as one of tho others, although
tho purchase may have been made with his own exclusive
property.’ ”
Another decision particularly in point is quoted by
Mohummvd Ehn Keys, of the Imdm Mohummud Bdhir, on
whom bo peace, in tho instance of a man who had eman*
cipated his slave, stipulating the right of Wvla, and died
leaving no children, except females, after which the freed-
man dying possessed of property, a dispute arose between
the daughters and paternal molo relatives of the mann-
mittor resp6cting tho succession, and tho Imdm adjudged
the whole inheritance to tho latter or akelas, who were
responsible for his fines. A second tradition from tho
same Imdm is quoted in tho following words: — “The
Commander of the Faithful, upon whom be peace, was
appealed to, in the insUinco of a woman deceased, who
had cmqnci]%ted her slave, stipulating Wvla, and left a
son, who claimed tho freedman’s succession ; he adjudged,
however, the whole inheritance to her asbdt or paternal
kindred and akelas, in preference and exdnsion of her
•children.”
The imme> It is further a common and established maxim amongst
« diate po- .
IIEIES BY WULA OB PATEONAGE.
853
our doctors that tho fothor and mother of a manumittor rents of a
must bo associated with his male children in tho right of
succession to his freedman, and also upon failure of his “
immediate male offspring that their children supply their
places, observing always the rule of precedence by prox-
imity in degree, already so often described in treating of dren, upon
consanguinity. Thus, if a manumittor should leave
father and mother and also malo children, each of tho their do-
parents enjoy their appointed share of the freedman’s sue-
cession, as do also the sons their regular portion, in tho place,
same manner as under a consanguineous title, being all in
tho same class and degree ; and if only one parent or one
son of tho manumittor exist, such individual takes tho
whole property of his freedman. With respect, further, to And
grandchildren upon failure of immediate sons, each of
those takes tho share allotted to him tlirough whom their males and
relation is derived, without distinction of malo or female ;
for amongst the lower descendants this distinction is not outdjstinc-
observed, their first ancestor from tho manumittor being
a male.
Brothers, a^in, of a manumittor do not inherit mth
his sons, or with their descendants, how low soever in
degree, nor do paternal uncles with brothers; and, in
general, tho some arrangement is hero to bo observed
respecting succession to the right of Wula, and prece* to proxi-
donco therein by proximity, as formerly detailed for in- uid
heritance by blood. Thus, if a manumittor leave his^s*®®*
father and one son, the former takes a sixth ^rt of the
freodman’s succession, and all tho remainder goes to tho
son. If, in the room of a father, we substitute in this
example the manumittor’s grandfather, tho whole property
of tho freedman would descend to the son ; and, further,
if we suppose a brother and grandfiSther of the manumittor
to exist, the property would be divided equally J)etwi%t
them. Also, if we suppose a brother’s son and a grand-
father to remain, each of these would inUerit half the
freedman’s property, neither excluding the other as being
of separate descriptions in one series or class, whereas, in .
the case of a grandfather and paternal unde, the former
PABT in A A . •
854
INHEllITANCl:;.
would take all tlio succession, excluding tho latter entirely
by reason of his precedence in class, as has already been
proved by many authentic reports and traditional docu<
ments.
As a necessary consequence of this settlement of suc-
cession to emancipated slaves in tho iishat or paternal
male kindred above mentioned, who are ah:la$ of tho
mannmittor, after failure of his male offspring and their
descendants, however low, which has been established by
express traditions, it follows that sisters and grandmothers,
mtheis whether by the father’s or mother’s side, have no title
of whatsoever of inheritance by Wula, in the same manner
Wula, as all relations by the mother’s side only are totally
excluded from the benefit of this title, like brothers and
nal rela- sisters of the mannmittor by tho same mother only, his
cldm" maternal uncles and aunts, and grandfathers and grand-
thcicto. mothers by the mother’s side, because neither of all those
are considered asbM in law, nor do they bear any respon-
sibility for crimes or offences, as will appear from a refer-
ence to tho book of Deeat on fines.
A titio to It has never been disputed by any of our doctors that
TFida is a legal ground of inheritanco ; but whether it is to
like all bo considered as actual property in tho person who possesses
^nnd of capable of transfer and tho other uses to which
inherit-, property may be applied}* is a question that has admitted of
^^k'of opposite solutions. A majority, however, have decided in
trana&rin negative, as being the radical condition of all legal
claims, to oppose or obviate which no traditional authority
or other just cause can bo alleged ; and besides to demon-
strate that Wula is not property we have the saying of
him, on whom be blessing and peace : ** The relationship
of Wula is like that of consanguinity, which can neither
be sold nor given away.^’
Sinee, tilierefore, the right of inheritance by blood is not
considered property in law, and neither admits of sale,
donation, reservation in sale, or any of the other modes
of transfer, so {dso the title of Wula, which is expressly
* as above declared to resemble iti Further, to prove the
invalidity of its reservation in sale, we have an express
Iliillia BY WULA OB PATBONAOK.
805
tradition recorded- by Ayecs Ehn llascm from the Imdun
Jdfer Sddik, on whom bo peace, in these words : Aysha
reported to the Prophet, on whom be blessing and peace,
that the family of Boorcyra had sold a female slave,
reserving by stipulation the right of Wula to themselves
in event of manumission by the purchaser. He replied,
‘ Wida belongs to tho emancipator,’ and annulled their
stipulation.”
It is to bo observed that, in tho same manner as a Mannmit-
manumittor and his heirs above specified succeed to the ^dr^cirs
property of his enfranchised slave upon foiluro. of
sanguineous relations to that slave, so also they inherit tho children of
property of Ins children, should these latter leave no con- theirficed-
sanguincous heirs. Thus, if a man dies leaving no consan-
guineous heir, his property goes to his manumittor ; if not
himself an enfranchised slave, his inheritance is for the
manumittor of his father ; if his father was not emancipated,
tho succession is with his grandfather’s manumittor, and so
on ; as is expressed in a tradition of the Imdvi Jdfer Sddik
on whom bo peace, quoted by Ayees Ebn Rasim in these
words : “ I inquired respecting a person who had purchased
a slave, having children by a free woman, and afterwards
set him free : he replied, ‘ The Wtda of these children
belongs to his manumittor.’ ”
If a man dies who was not hiAself emancipated, but his
father the enfranchised slave of one person, and his mother numittoriH
emancipated by another, it is the common and prevalent pwfenod
opinion that the right of succession in this case is vested in ther’s in
the fatlier’s manumittor, in preference and exclusion of the
mother’s, because parentage is stronger and more noble on o&itrmg.
tho father’s side than on the mother’s ; and consequently
that side must be preferred in law. , True, in cases where the
father is still a slave, and the mother only has Jieen emanci-
pated, the right of Wvkt must belong to her manumittor
of necessity from failure of the father’s ; w^ch necessity,
however, being the sole cause of its establishment, should
the father be afterwards set free and the oause thereof thus
obviated, the title reverts to his master, in whom it is
permanently established. This is termed in law Jwrr~ooU
866
INIIEBITANCK.
Case of a
mother
emanci-
pated
whilst both
father and
j'Htnd-
fatiier are
slaves.
If the
grand-
tatberis
first set
fiecH's/a
shifts from
the mo-
ther’s
master to
his.
If the
father be
wnla, i.e. shifting or transferring the right of inheritance
by emancipation, first established in the mother’s manumittor
from necessity by failure of the father’s, to its radical pos-
sessor upon the removal of tho cause.
It is, however, to be observed that this transfer can only
take place in those instances where tho necessity may bo
obviated previous to tho child’s death : for after decease and
possession of the inheritance by the mother’s manumittor,
there can be no transfer to tho father’s master in consequence
of his subsequent emancipation, by reason of the prior title
on tho mother’s side, which cannot bo done away after
possession, as all our doctors have agreed.
If of the child above mentioned the mother had only
been emancipated, whilst both father and grandfather
were slaves, consequently tho right of Wula from necessity
established in the mother’s manumittor, and wo suppose
tho gi-andfather now to be set fi'ee previous to tho father,
a question of some importance upon this example may
arise, viz. “ whether tho right of Wula would hero shift
and be transferred from tho mother’s master to tho grand-
father’s?” Tho Sheikh has expressly decided in tho
afSrmativo, considering the grandfather invariably in tho
place of a father, i.e., on the strongest side of parentage,
and consequently that by tho same rule which transfers
Wula from the mother’s manumittor to the father’s, this
title must also bo shifted to tho grandfather’s should ho
be first sot free, which decision is further confirmed by
AUama IIMy and several others. The author of tho
Shuraya,^ however, would appear to have entertained
doubts as to this decision, founded upon the objection
stated by many to a grandfather being considered in
reality the same as a father during the existence of tho
latter even in slavery, wlio, as obviously nearer in degree,
olthougl^ hilnself debarred from succession by slavery,
ought nevertheless to impede the establishment of this
title in one moVe remote.
Considering, ^however, the doctrine of the Sheikh as
Abool Katim, Bumamed Mohthhih,
HEIRS BY WOIiA OR PATRONAQE.
857
established, and deciding the example above, if wo suppose subsc-
the father’s subsequent emancipation after transfer
Wula to the grandfather’s master from the mother’s, pated, a
this title must now again bo shifted to the father’s manu- qj
mittor, for its establishment in the grandfather’s pro-
ceeding evidently upon necessity, or the slavery of the
father, which is now obviated and removed, the title must
revert to its radical possessor by the same rule already
described for transfer from the mother’s to the father’s
mannmittor, and this species is termed in law Jurr-ool-jurr,
or transfer of a transfer, the right being first shifted to
the grandfather’s master from the mother’s and then again
from him transferred to the emancipator of the father.
According to the other doctrine, if we suppose the father’s
emancipation as above, the Wida would at once bo trans-
ferred from the mother’s master to his; and hence it
appears that this latter species of Jurr cannot at all bo
established if we admit the force of the objection stated
against the title of the grandfather’s manumittor. If, on
the other hand, the father should die a slave, and, admitting
the force of the above objection, should the right of Wnla,
or should it not, now at all events, bo shifted to the grand-
father’s manumittor from the mother’s, in virtue of his
previous emancipation? This question still admits of
a doubt on the one hand, becaude the only objection to its
former transfer being the father’s existence in slavery,
which is now obviated by his death, there appears strong
ground for renewing the claim of the grandfather’s manu-
mittor, and shifting the Wvla from the mother’s ; whilst
on the other hand, as this transfer did not immediately
follow the grandfather’s emancipation, but, on the contrary,
the right was established in th^ person of the mother’s
master, there does not appear sufficient qfinse now to
annul it. '
Upon the whole, seeing the various ^fficulties and
disadvantages which would occur from the admission of
this latter doctrine, and the obvious facility of decision
in all cases by following the opinion of the Sheikh and
others in support of the first and second species of transfer, ,
858
INIIEBITANCE.
we may safely consider his opinion as a fixed and established
Ifanjrooe rule of law. Farther, it appears proper hero to remark
fronts parents of such person, not himself
was origin- emancipated, was originally or independently free, there
thm^iTno Wvla over him to any person whatever,
Tfatu by as has indeed already been hinted at in delineating the
conditions of this right, because a child is by law a dependant
other. of the noblest of his parents, or the parent who is originally
free. If, therefore, such person should leave no con-
sanguineous heir, his inheritance must go to the Imam, or
to the surety for his fines by contract in preference, should
any person have taken this responsibility, but can by no
means bo claimed under the Wnh of emancipation by
the manumittor of the other parent. This doctrine has
never been apparently contradicted by any of our doctors,
although the foregoing tradition, quoted by Ayees, has an
apparent tendency to controvei't it.
If the If the owner and manumittor of a child and of his
SSu parents should be different and distinct persons, each
emanci- has separately the JFula of his own immediate frecd-
dMinct^ man, that of the child resting with his manumittor, and
owRcra, that of the parents entirely with theirs. Thus, if the
child were to die without consanguineous heirs, his inherit-
thc W«/o anco goes to his own manumittor alone, and by no means
fneSnZ? ^ ^he emancipator of His parents, because the obvious
intention of his saying, upon whom be peace, “ Wnla is
for him who emancipates,” confers this title upon the
immediate and actual emancipator of the slave, who must
therefore necessarily be preferred to the benefactor of his
■ parents. Upon failure of him the title descends to his
male children and their descendants, after whom to his
Aahat, but can never bo ^nsferred firom him to the mana-
mittor of the^freedman’s parents, because the authority of
Itfw for chifting this right is expressly and particularly
limited to its transfer from a weaker to a stronger claimant.
The (uid by no means from a stronger to a weaker. The Wula,
^ aMual manumittor over his freedman can
emoDci- ‘never evidently be shifted from him to any other person,
•BovCT to” >'®®son of the weakness of all other claims in comparison
nsnis BT WULA ob patbonage.
859
to his, and the inheritance of such freedman, upon failnre transferred
of him and his heirs above mentioned, must invariably go
to the Imam. master.
This fixed principle of law preventing transfer from a Nor from
stronger to a weaker has a necessary tendency further to
prevent the shifting of Wula from a father’s emancipator the mo-
to the master of a mother ; and hence if a person’s father
be emancipated whilst his mother is a slave, and the
father’s manumittor dying should leave no male children
or Aslat, the mother’s subscquent( emancipation cannot
shift the title of Wula to her master for the exact reason
already described. It is otherwise when a female slave
being emancipated afterwards conceives and bears a child
to a husband in slaveiy, for here the Wuh of such child
must evidently belong to the mother’s manumittor, by
reason of the father’s bondage, and consequent incapacity
of his master, whilst the mother’s manumittor has a right
of property in the child, whose freedom, depending in this
case upon that of the mother, is an efiect of his bounty,
and consequently ho alone can bo entitled to the Wula.
To conclude, the arrangement of law with respect to
inheritance by the Wula of manumission may be thus
computed in a few words. Upon failure of the immediate
manumittor of a freedman, his children and Asbat, the
inheritance goes to the manumittor’s manumittor if he had
any, after whom to his children and Asbat. Should there
bo no Wula by immediate emancipation, the inheritance
goes to the father’s manumittor, after whom td his children
and Asbat, and on failure of those to the manumittor of
the father’s manumittor, after whom to his children and .
Asbat, in the same manner and by the same rule which
applies to immediate emancipation. Lastly, upon &ilure
of all right of Wula by manumission on the father’s side :
that is, where neither the deceased, his father, gijmdfafher,
or other male ancestor has been emanci|>ated, then the
inheritance must go to the mother’s manumittor and his
Asbat, on failure of whom to her manuuj^ittor’s manumittor
and his Asbat. After these to the manumittor of the
maternal grandfather, and so on ; observing the foregoing
860
INUEIUTANCK.
arrangement and the rule of procedendo in each class to
the nearest, as already so often described.
Of JFtila hy respomibUity for offences.
The pa> The second class of heirs by IVvla comprehends such
is P^'Bons as undertake by contract with a person who has no
heir to his heir either by blood or manumission, the responsibility for
client. crimes and offences to be by him committed through
error or inadvertency, and thereby requiring expiation by
fine. That this species of responsibility is one of tho
causes which operate in law a title to succession, all our
doctors are agreed, by reason of a tradition of tho Imam
Jtlfer Sddik, on whom be peace, quoted by Husham Ehn
Salim in these words : — “ If one person becomes bound
for another by Muicdldt, or contract of amity and
patronage, ho has a title to his inheritance, and is
responsible for his fines.” Another judgment of tho
same Imam to a similar effect is recorded in the cose of a
person who had embraced the faith and entered into a
contract of clientage with a believer, viz., “If that
believer has become responsible for his fines and offences
he is his patron and heir.” And to tho same purport oro
many other authentic traditional documents.
Upon Tho right of inheritance, however, upon this title
cannot of necessity be established except upon entire and
rdatiou absolute failure of all heirs by consanguinity, and also by
manumission, in whatsoever class or degree, whereas its
mtn ii ini » establishmoilt does by no means depend upon the existenco
or failure of heirs by affinity or marriage. Thus, if a
B^ajon- person who enters into an engagement of clientage have a
cUent^, single consanguineous heir, however remote, if his emanci-
rfrhrnn*”^ pator, or any other person capable of claiming under this
exist, is title should exist, the conlract is totally invalid, and founds
no title fo succession whatsoever, as is clearly demon*
strated both by the sacred text respecting blood relations
formerly quoted, and by the various traditions introduced
Whilst ijs regarding inheritimee by manumission. If, on the other
t^7^ hand, the party contracting should have a husband or wife,
dependent these take respectively their highest appointed shares of
IIEUtS BY BESFONSIBIIilTY FOR OFFENCES. 861
the property, but *60 by no means affect the validity of of the tide
contract, in virtue whereof the remainder of tho client’s
estate goes to his patron who became responsible.
This contract, it is farther to be observed, does not This con-
found a mutual or reciprocal title to inheritance betwixt
the parties, but, on tho contrary, ho who becomes rospon- n matnal
siblo, or the patron, alone enjoys this right over his client, h^tanw.'
and not the latter by any means over the former. Hence,
if one person should say to another, “ I have contracted
with you that you shall bo liable for all my fines, surety
for my offences, that you shall assist and protect me, and
when I die you ai’o my heir,” which treaty tho other
ratifies and accepts, ho tho acceptor, or responsible person,
alone is the heir, and by no means the declarer or client,
unless tho responsibility should be mutual, in which case Except in
doubtless the advantage or title of succession must bo j],,,
also established in favour of both ; as where, for example, resjwnsi-
one person should say, “I have contracted mth you to
this effect, that you are my akila, or responsible for my
fines, and I also become liable for yoara ; that yon afford
mo your aid and protection, and I shall assist and protect
you ; that you ore my heir, and I also am yours,” which
mutual engagement tho other ratifies and accepts. This
principle is established as well by unanimous assent as by
tho obvious spirit and intent of 4he foregoing traditions.
This contract, being evidently suspended upon mutual Reanires
consent of tho parties and formal expression of that con-
sent, requires, like all other valid contracts, declaration of acqniea-
one, and acceptance of tho other party, to be conveyed in
the manner laid down for similar transactions in tho .
former books of this digest ; but whether it is to be con-
sidered in law one of those permanent and binding con-
tracts which cannot after conclusion be annulled by either *
party without consent of the other, is U ^ue|;tion tipon
which our doctors have disagreed. A majority, however,
have decided in the affirmative, by reasofi of the common
and general rule of law : “ That contracts and conditions
must be adhered to ,* ” whilst tho Sheikh, in his Khilaf, ^
has, on apparently strong grounds, declared it to bo dis- be
362
INHERITANCE.
solved by
either
party at
pleasure so
lon^ as
both con-
tinue in
statu quo
ante
pactum.
Is restrict-
ed to the
patron
alone.
cretiomry, and that each party therein Is at full liberty to
dissolve the contract whenever he pleases, so long as the
client shall have committed no offence which the patron
has expiated by paying the fine; because in this event
there can be no doubt that it becomes perpetually binding
in regard of the offender, and can never afterwards he by
him dissolved to the injury of his patron suffering by
responsibility.
To conclude, this title of inheritance does not descend
to the heirs or relations of the patron, but is limited by
law to himself alone, conformably to the nature and con>
dition of his contract, as well as to guard, in matters
Avhich oppose radical principles of law, against trans-
gressing the bounds of ccriainty on infallible traditional
proof ; for since the responsibility for the client’s lines or
offences cannot extend to the children or relations of his
patron, so it necessarily follows that the advantage con-
nected with this responsibility, viz., inheritance at his
death, can bo enjoyed by the patron himself alone.
Of the W ula of the Imam, or Doctrine of Escheats to the
PuUic Treasury.
erchci^sor specics of wuh, or legal title to inheritance
the title of thereby, is that enjoyed by the Imam, in virtue whereof if
the/mrfm. ^ person die leaving no heirs by consanguinity, no husband
or widow, with the provisions and restrictions already
quoted respecting the. latter, no emancipator and no surety
for fines, the 'property or inheritance of such person is by
law entirely vested in the Imam, who is, in other words,
. the solo heir of every person deceased leaving no individual
member of any of the foregoing classes. This principle is
established, according to the Sheikh, as well by nniversal
* assent as by an authentic tradition of the Imdm Mohummvd
BAktr, on, whbnl be peace, quoted by Booreyd Ajaly in
these words : — “ If a person Should not have engaged in a
contract of clientage with any believer previous to his
death, the inheritance of such person is vested in the high
priest of the Faith'ful,” that is, the Im&m ; to which effect
there are many other traditions generally known.
EXCIiUSIOK.
363
With respect to the application of this fund, daring the The fond
absence of the Imam, the doctrine of Mohulcktk in bis'p^jJjj^
Shuraya, as well as of most other lawyers, prescribes its the
partition amongst the poor and indigent of our sect, by
reason of the impossibility to deliver it to him upon whom
be blessing and peace, and consequently the preferable title
of his indigent posterity and followers to enjoy it, in the
same manner as they enjoy his fifth of spoils taken in battle,
of mines, and of tho various other subjects with which this
right is connected. To this effect wo have also a tradition
recorded by 7I«% from the Im/m Jdfer Sddik, on whom ..
bo peace, in explanation of tho sacred text, “ They will
ask you concerniug spoils,” &c., which is in these words :
“ If a person should die who has no heir or Moicla (patron)
his property is as spoil.” Another tradition of the Imam
Mohuvmud Bdkir, on whom be iieace, quoted by Mohmn-
miul Eh)t Moosdim, is in these words : “ Whosoever dies
leaving no heirs cither by relationship, manumission, or
responsibility for fines, verily his property is ns spoil.”
And to tho same effect there are various other documents,
from all which it is evidently dcducible that such property
belongs to tho Imam ; for since, by tho word of the most
High, “ tho division of the spoils belongcth unto God and
his Apostle,” and whatsoever belongs to God and his ^
Prophet appertains of right to fho Imam, and these have
expressly applied them to their followers, this affords an
obvious proof of their being made over to tho poor and needy
of our sect, as well as also in reality to the fich, for both
are alike comprehended in the division of spoils.
•
Of Exclusion.
Exclusion from inheritance is described by the author ExcIumou
of the Shuraya as being of two sorts, either entire or '*
partial, that is from a part of the share. ''Vfith^.respdbt. to Entire by
the first, the uniform criterion of law is that respect and
attention be paid to nearness of blood, upon which principle as of
it follows that a grandchild cannot at all inherit with a child Sen^by*'*
of the deceased, whether male or femafe, not even a son’^s immediato
son with a daughter, and that whenever an assemblage of
S64
INHEBITANOE.
chQdren’s children occurs, however low in descent, the nearer
idsoof always exclude those who are more remote. Further,
in whatsoever degree exclude all persons related to
fathers, the deceased through his pai'ents or one of them, as
by^thoMr* or sisters and their children, grandfathers and
their parents, paternal and maternal uncles and their
children; and, in general, no relation can inherit with
children of the deceased, except immediate parents and a
husband or wife.
A brother Upon failure of parents and children of tho deceased,
nephetT** ^^^others and grandfathers form the second class ; of these
&c.; therefore, upon tho same principle, a brother, for example,
excludes a brother’s son, and if wo suppose an assemblage
of the members of this class in different degrees of descent,
also an nearest always excludes one more remote. Further,
nncle and brothers and sisters of tho deceased or their descendants in
any degree, exclude all those related through grandfathers,
but not a as uncles paternal or maternal and their children, but do
in exclude tho parents of those grandfathers, for a grand-
of a^*T* degree of ascent, however remote," is still
“ considered a grandfather with respect to tho other descrip-
tion of this class ; whilst, at tho same time, if wo suppose an
assemblage of them in different degrees of ascent, tho
Uncles
exclnde
j^rand-
nnclcs ;
lowest or nearest to the deceased would always exclude one
who is higher or farther removed.
Uncles again, whether paternal or maternal, of tho
deceased, and their children how low soever, exclude
entirely all ttncles of his father, who, in like manner, and
Foil kins-
men those
by fiitber’s
side only.
Any blood
relation ez-
dndesa
mannmit-
tor, who
oxdadesa
patron,&e.
Fortinlex*
^nsioDof
their descendants exclude all uncles of a grandfather.
Further, every person related to tho deceased by both
&tber’s and mother’s side excludes entirely from inheritance
a person related by the father’s side only, provided they are
equal in class and degree.
Lastly, a* blood relation, however remote, excludes
entirely a manumittor, a manumittor or his representative
excludes a patron by contract or surety for offences, and
tho latter precludes escheat of his client’s effects, or, in
other words, prevents the title of the Im6m. "
Partial exclusion or diminution of shares is of two kinds :
EXCLUSION.
865
that by a child, and by brothers or sisters. A child or pareji ^ by
descendant of the deceased, however remote in degree, *”'
restricts the share of his immediate parents to two-sixths
of the inheritance, except in the case where, with one, two,
or more daughters, there is only one of tho parents remain-
ing. Further, a child of the deceased, whether male
female, restricts also the husband or widow to these lowest of a hns-
appointed shares of inheritance, agreeable to the words of ”
the sacred text formerly quoted. Husbands and wives there-
fore may bo said to take in three cases : first, with a child in
any degree of descent, the husband takes a fourth, and the
widow an eighth of tho property ; second, upon failure of
children and children’s ehildren how low soever, tho
husband has in this event a half, and the widow a fourth
of tho inheritance : but neither of these shores eon bo
diminished by Aid or increasing tho divisor, because this
practice is totally forbidden by our law; thirdly, upon
failure of all other heirs whatsoever, whether by consan-
guinity or patronage, tho husband takes not only his highest
appointed share, viz. a half of tire wife’s estate, but receives
also the remaining half hy return in virtue of the residuary
title formerly specified. Tho widow, also, in this case
receives first her appointed share, viz. a fourth of her
husband’s estate ; but Avith respect to her residuary title
there are three opinions : one confirming her right, another
which totally rejects it, and a third admitting her claim
daring the absence of the Imam, but rejecting it, were he
present. Tho most approved doctrine, however, as formerly
expressed, denies any title to the return on the port of a
widow.
Brothers and sisters, again, of tho deceased restrict Brothers
tho shore of the mother to one-sixth of the inheritance
upon these four conditions: — First, that they consist of the mot
two or more males, or of one male and twif females, «r of
four females without a male ; second, that they oe neither four oon-
infidels nor slaves, as will immediately ‘at more length
appear in treating of the impediments to succession.
Whether on the part of a murderer ^this exclusion can
take place, is a question admitting of doubt, but the most
866
INHEBITANCE.
prevalent doctrine has decided in the negative. Third,
that the father of the deceased shall also be in existence ;
and, fourthly, tliat the brothers or sisters themselves bo
either of the full blood, that is, by both parents, or by the
father’s side, as also agreeable to the best founded opinion,
that they exist separate from the mother, not in her womb,
for a foetus does not operate this limitation of her share.
Further, the children of brothers or sisters do not in any
degree affect the share of a mother, nor of hermaphrodites
a less number than four, by reason of the possibility that
they may all be females.
0/ Impedimenta to Sncccaaion.
Impedi- Impediments to succession (as described in the Shuraya)
*“®“**‘ are three — Infidelity, Murder, and Slavery.
Iiifide%. By infidelity, as impeding succession, is here to bo
understood every belief or i^ersuasion which excludes its
votaries from the title of Jsldm, for no alien, whether
hostile or tributary, and no apostate from the Moohum*
mudan faith, can inherit the property of a believer : whereas
the latter may be heir cither to an original infidel or an
apostate ; and hence if an infidel should die leaving several
heirs unbelievers, with one who has embraced the faith,
the whole inheritance would go by law exclusively to the
latter, however remote, even an emancipator or patron by
contract, although the former were the nearest relations
by blood. If, however, the deceased infidel should leave
no heir whafisoever a believer, an infidel would in this
case succeed, whereas of an apostate the inheritance
. devolves on the Imdm upon failure of Moohummudan
claimants; and this decision is applied in one report to
the case of an original infidel, but the report is considered
nnanthentic.
< If a bjeliever'leave infidel heirs, they do not inherit his
property, which, on the contrary, goes to the Imdm, npon
Canvenioii failure of heirs who are believers. If, however, an infidel
should embrace the faith after his ancestor’s death, previous
oMtor’s division of the inheritance, this impediment is thereby
removed, and the proselyte is associated with all other
But not
their cliil-
dien.
IMPUUIMKNTS.
367
heirs who are equal in degree, or preferred to the whole impedi-
succoBsion if nearer ; but after distribution of the estate,
or total appropiiation thereof to a single heir, his conver-
sion has no effect to remove the impediment except in
cases of competition with the Irndm, to whom, even after
the transfer is made, his conversion bestows a preference,
according to a tradition reported by Aboo limecr. Some
doctors, however, have alleged that convci’sion only when
previous to transfer of the property into the public trea-
sury confers a preferable title on the heir, whereas after
this transfer is made ho can have no claim whatsoever.
Others, again, have disputed his title in both cases, upon
the ground that the Imdm ought properly to bo considered
in the exact situation of a single heir, to whom, therefore,
independent of any transfer, the inheritance belongs upon
the ancestor’s death, and cannot be wrested from him by
subsequent conversion of a nearer heir.
If the husband or widow of a person deceased is a
believer, and there be also some other heir who is an
infidel, but embraces the faith after the ancestor’s death,
such proselyte becomes thereby entitled to the residue of
the estate, after payment of the appointed shore to the
former. Such, at least, is the prevalent opinion, liable,
however, manifestly, to difficulty and doubt, which arises
from the impossibility of disiyibution in the case of a
husband; and if, therefore, wo pronounce that the pro-
selyte is associated with a widow only, and not with a
husband, it would appear the most just decision ; because
with the former the Imam's title being likewise invalid,
distribution is obviously possible, — whereas a husband, in
virtue of his reversionary title becoming alone solo pro-
prietor of the estate, there is no room for division, and
consequently no claim througll subsequent conversion.
The ease is, in fiict, therefore, like that t>f a dangler
professing the faith and the deceased’s father an* ihfidel, or
a sister believing with an infidel brother, in neither of
which, evidently, subsequent conversion could have any
effect. *
If any one of the parents of an infimt child be a believer. Constrao-
. of law
868
w
INHEBITANCS.
in favour tho constrnctioQ of the law is in favour also of tho infant,
fontchonld further any one of tho parents, both infidel at its birth,
one of the should embrace tho faith during its infancy, the rule is
ft ^Uever! exactly the same ; but should such infant when arrived at
maturity reject tho profession of faith and persist in denial,
apostasy is thereby established.
^ infidel dying should leave infant children and a
drenyan brother’s son and sister’s son, for example, who ore believers,
w^'more ®state must in this case bo divided betwixt these two,
distant re- two-thirds to the former and one-third to the latter, and
who arc maintain the children of tho deceased until maturity
believers, by contribution proportionate to their respective shares. If
on maturity tho children profess tho faith, they are still
preferred and assume the succession agreeable to a decision
reported by Malek Elm Ayoon, but if they avow infidelity
the property of tho former heirs is established by virtue of
the first distribution ; and the children ore excluded entirely.
This decision, however, is by no means free from difiScnlty,
because in tho first place children of infidel parents ought
naturally to be considered infidels themselves, and secondly
at all events the distribution of property previous to their
profession of faith would appear to preclude any future
title.
Diffvrepcc Difference of sect or persuasion in Mohtmmvdwn is no
noTm^i- impediment to 6uccossion,^and thus it is to bo observed
ment to that all professors of our faith inherit from one another
aoccesnoii. pjonaiscuously, without regard to their particular teiieta, as
on the other hand do also all infidels in general although
of even different religions.
Apostates The property of an apostate who was by birth or
parentage a believer comes under the law of inheritance and
iniawfrom ig devisable amongst bis heirs at the date of his apostasy,
Scir which period fixes also the date of divorce firom bis wife,
^7* and Aommencement of her Iddtit, which is exactly that
appointed 'for a widow, whether be is immediately put to
death or snrvivec in apostasy.
Bat female It is otherwise with respect to a female apostate,
because she is not 'liable to immediate death, bat most be
wise. imprisoned and scoui^ed at the appointed times of prayer:
IMPEDIMENTS.
369
consequently her property cannot bo devisable as inheritance
until her actual deatli. Further, with regard to a male
apostate not by birth or parentage a believer, but who had
himself first embraced the faith, and afterwards apostatized,
ho also is not subject to immediate death, but must bo
called to repent, and only on persistence is liable to capital
punishment; consequently, his property does not become
devisable until his actual decease, either natural, or by the
hand of Justice, but his wife nevertheless commences her
Iddiit from the date of his apostasy. Should ho therefore
rctuiTi to the faith previous to expiration of this Iddut, he
is entitled to take her back, but if the Iddut has once
expired the divorce is thereby irreversible, and ho has no
future claim whatsoever.
By murder as an impediment to succession, it is hero Murder
to bo understood, that a person who slays another wilfully
and unjustly is not permitted by law to inherit from the bnt not ac-
slain, but that a person put to death for a just cause as by hoSclL.
retaliation may be inherited from by his slayer. Accidental
or unintentional homicide also is no legal bar to succession
according to the most prevalent doctrine, although Shaikh
Mofeud has expressed an apparently very proper limitation of
this rule, viz., that the slayer can inherit no part of the fine
ho has paid in expiation. This impediment applies equally
to parents and children and to jiU relations, whether by
blood, affinity, or otherwise, and if therefore a person
thus wilfully murdured should have no other heir than
his murderer, his inheritance must go to* the public
treasury.
If a person should murder his own father and theCliil^n
parricide has a child, this child may inherit from the grand-
father, should he leave no issue of his loins, for the crime not de-
of a father is no bar to the sudbossion of his children ;
bnt if the heirs of the murderer be infidelstthey are* a^ cession on
excluded together, and the inheritance goes to the Imdm,
unless they should embrace the fiuth, in vriiich case both father’s
the right of inheritance and retaliation is established. This
latter title leads to the following cases Raider
First. If a murdered person leave no heir bnt the Im&m, connyt h«
PABT H. BE fiwfiven.
870
INHERITANCE.
be may either demand retaliation or may accept the expiatory
fine should the murderer tender it, but is not at liberty to
forgive altogether.
The fine of Second. The fine of blood is considered by law as
property of the person slain, subject therefore to the pay-
ment of his debts and legacies, andthis whether the murder
was wilful, supposing the fine to be accepted, or uninten-
tional, when it follows of course.
Byallre- Third. All relations, whethcrconsanguineous, byaffinity,
cepta(^" otherwise, may lawfully inherit the Deeut or fine of blood.
blood is
heritablo
as pro-
perty.
by the
mother’s
side.
Slavery
operates
both as to
the heir
and ances-
tor.
except those connected by the mother’s side, with respect
to whom there is a diversity of opinion, but the most approved
doctrine excludes them. A husband or widow further
cannot inherit tho right of retaliation fpr the murder of the
deceased spouse, but if commuted by mutual consent for
an expiatory fine they enjoy their appointed shares of the
amount.
The third impediment to succession, or slavery, has by
law an equal operation both as to the heir and ancestor.
If, therefore, a person should die leaving one heir who
is free and another in servitude, tho inheritance goes all
to the former, however remote, in preference and exclusion
of the latter, however near in degree, but should such
slave have a child who is free, the latter is not debarred
from succession by the parent’s bondage ; and further, in
tho case of two or more heirs who are free with one a slave
at the ancestor’s death, but emancipated previous to distri-
bution of tho property, he becomes thereby entitled to his
portion if equal in degree, or takes the whole succession if
, nearer than the others. Emancipation, however, subsequent
to distribution confers obviously no title to a share of tho
inheritance, and consequently, upon the same principle
formerly described regarding conversion to the faith, should
there be onl^ one heir of the deceased besides a slave, so
as to obmte the necessity of division ; manumission after
the ancestor’s death is also ineffectual to found a claim of
succession.
“ howeveh to be observed, if a person deceased
h^mnat should have no heir except a slave, his property must be
IMPEDIMENTS.
371
applied to the purchase and emancipation of such slave, be emanci-
who, upon being set free, inherits the residpe, and the
proprietor may bo legally compelled to dispose of him. and inherit
This on the supposition that tho deceased’s property is
adequate to tho purchase ; should it fall short, some doctors
are still of opinion that tho heir must be released from
bondage to the extent thereof, and perform emancipatory
labour for tho balance of his price. Others have rejected
this doctrine, and adjudged the succession to tho Imam,
which latter decision appears better supported by traditional
authority. In like manner, if tho deceased shall have left
two or more heirs who are slaves, and the shares of all or
of any one should fall short of their price, not one is in
this case entitled to manumission, but the property must
all descend to tho Im/m.
Further, if an heir is partly emancipated and partly a
slave, ho receives a part of his appointed portion of inherit-
ance proportioned to the extent of his freedom, and is do-
barredorcxcludcd in proportion to his bondage. The same is
exactly the rule in every situation with respect to ancestors; .
and female slaves are considered by law in the samej)re-
dicament with males. Parents of
It is established by unanimous assent that parents who
are slaves must be emancipated by succession to the slaves*
property of their free childre»; and with respect to the ^anct
converse, or emoncipation of children by succession to their
free parents, doubts have been suggested, but tho aflSrma- ance, and '
tive is the best founded opinion. With regard, however,
to tln'a necessity in the case of more remote relations, rule doca
although by some extended oven to a husband and wife,
and to all other heirs whatsoever, the negative appears far other more
more prevalent and better supported.
An Oom-i-wnlvd, or female slave who has borne a child An Om i
to her master, has nevertheless no claim l!b fiis ipheri&nce, "tditdor
nor fhrther a MoMbur, i. e. a slave to whom freedom has Wh^no
been granted at the proprietor’s death, although related in
a degree, which founds by law a title to succession if not
thus counteracted. The same is the case of a Makatub or Nor a
person who has ^pulated to pay a ransom for his liberty,
372
INHERITANCE.
some part
of his ran-
som has
been paid.
Leaan im-
pedes the
right of
succession
The pro-
perty of
absent or
missing
persons
cannot im<
mediately
be inhe-
rited.
A fatua
may inhe-
rit, if pro-
dne^d
alive.
whether snch stipnlation was absolute and in general terns,
or limited to a particular term of payment, unless some
part of the ransom has been paid.
As appendages of, and connected with the impediments
to succession already detailed, we describe the four follow-
ing circumstances : —
First. Leaan, or accusation of adultery upon oath by a
husband, as disproving the descent of his nominal off-
spring, necessarily cuts off their right of succession to his
estate. If, however, subsequent thereto he should acknow-
ledge their parentage, such confession removes the impedi-
ment as to them, and they inherit their father’s property ;
but he is for ever debarred by a personal objection from
claiming any part of their inheritance should he survive
them.
Second. Absence. If a person absent from his house
or country at so great a distance as not to be known or
heard of, should ho reported dead, his property cannot
come under the laws of inheritance, until his death is fully
established, or until such period shall have elapsed as by
the death of all his contemporaries to removo the pro-
bability of his existence, after which it may be divided
amongst the heirs who are then existing, without retro-
spect to such as may have died previous to the division.
Some doctors have prescribed a period of ten years from
his absence, and others have disputed the legality of
distribution altogether, directing the surrender of his
property in tihst to the nearest relation in opulent circum-
stances, but the first doctrine is obviously best founded on
reason and justice.
Third. A foetus or embryo in the womb at the ancestor’s
death is by law considered an heir upon condition of being
brought forth alive, but if produced dead, no portion of
inbefitance can bb claimed in its name. Whereas imme-
diate death, if once seen in existence separate from the
womb, does not impede the right of succession. In cases
again of miscarriage by violence, the criterion of law is
that thero be observed in the child that species of motion
by which life is proved, or which cannot proceed from a
CLAIMANTS UNDER AN APPARENTLY LEOAL TITLE. 873
dead body, bat not merely a shaking or contraction of the
limbs, which is often observed to take place after death
involuntarily.
Fourth. Debt. If a person die who is involved in debt Dobtofthe
to the full amount of what he leaves behind him, his
property cannot bo transferred to the heirs, but mustoveiy
continue as if in possession of the deceased burthened
with payment of his debts. Should these not involve tho anco.
full amount of his estate, the excess is considered inherit-
ance, and may be immediately transferred to tho heirs,
leaving a proportion adequate to the debt still attachable by
his creditor, as if in possession of tho deceased.
Having thus described all tho legal causes which
operate a title to succession, and tho various impediments
that prevent in law the operation of those causes, wo
proceed to consider tho situation of claimants under an
apparently legal title, but whereof the cause was originally
contrary to law.
All our doctors aro agreed that such cause cannot in Children
any situation found a valid title to inheritance betwixt ^
believers ; and thus if a Mohumnmlan should many a
woman who is forbidden to him, or with whom marriage marriage,
is unlawful, either ra»iically, that is, from their birth, or
, ’ , « 1 » i r parents, do
by some recent occurrence, such as fosterage, former not inherit
marriage, or any other cause, there is no right of inherit- ea<* other.
ance betwixt them in virtue of such marriage, whether it
proceeded upen an error or otherwise, because it is not
established in law, like the right of Wuia claimed by a
person who emancipates the slave of another without his *
authority or consent ; and of tho same nature is tho birth
or descent of children begotijpn under such unlawful .
contract of marriage, except in the case of , error, for they
cannot inherit from their parents, as will hereafter 4)0
more fully explained ii) treating of children whose mother
is divorced for adultery.
It is otherwise with respect to children produced by Except in
■ the case of
— ^ error.
” Arab. TSthiMooi. •
874
INHEBITANCE.
Infidels in*
herit upon
grounds
that are
unlawful
according
to Mohum-
mudan
faith.
erroneous connection of their parents, for these have an
undoubted title of inheritance by unanimous assent,
although the cause of their birth is certainly illegal as
unsupported by valid marriage, and thus, if a man should
have carnal connection with a woman through error,
supposing her to be his wife, which proves not to have
been the case, the offspring of such connection is held in
law to be the child of both its parents, if both were alike
in error, or of that ono alone who was influenced by the
mistake, because the laws of descent or establishment of
parentage expressly include the case of erroneous conneo
tion, and consequently the right of inheritance founded
upon descent must be equally established.
From this principle it would appear as a necessary
consequence to follow, that if a man have carnal connection
with his own wife, supposing her the wife of another, and
wishing to commit adulteiy, the offspring of this connec-
tion is not to be held in law as of the father, although
necessarily the child of his mfe, if she did not labour
under the mistake but knew him to be her lawful husband.
All our doctors arc, however, agreed that the parentage of
such child is established in this case in the father also,
because the mother, being in reality his wife, any doubt
or error upon his part can only prove him guilty of
a carnal intention, and has no other effect whatsoever
in law.
With resjpcct again to zimmeea, or tributary infidels,
the right of succession may he fully established betwixt
them upon grounds, whether of descent or marriage, that
are prohibited by our law, provided they are authorized in
the belief or according to the rites of their own religion, or
have proceeded upon doaI)t or ignorance of the parties that
they are forbidden ; but if, on the contrary, these grounds
am dlegaL also in their own belief and to their knowledge,
we decide upon them according to, our law. Such is tibe
opinion of the Sheikh as expressed both in his Nehdyut
and Tvhzeeh, as wpll as of many other anthors ; and, indeed,
appears itilly supported by what Sukoony relates to have
been told him ))y the Imdm JAfer SAdik, as a judgment
UUTnAli ACENOWIiGDOMENT OF BELATIONSHIP. 875
oi Aly, upon whom be blessing and peace, viz. that be
confirmed the title of a Mvjoosy,^* who bad married bis
own mother, to a twofold portion of her inheritance, one
as being her son, and the other her husband. This report,
if its authenticity or the fidelity of Sukoony be questioned,
would not only refiect discredit upon the judgment of
many of our doctors who havo uniformly adopted his
authority as the guide of their opinions and decision, but
would also appear unjust as to himself, who is reckoned
amongst the number of our best and most accurate
traditionists. It is, besides, further strengthened by a
saying of the Prophet, on whom and his posterity bo
blessing and peace : “ Every nation or tribe professing a
particular faith or religion is bound to abide by the laws
thereof;” and another quoted by Siulook in those words,
“ Every individual who professes the religion of any nation
or tribe, is bound to abide by their laws ; ” also by a report
of Oohry to this effect, “I heard the Imdm Jdfev Sudik
declare that the Prophet of God, upon whom and his
posterity be blessing and peace, expressly prohibited the
custom of reviling female slaves as bastards, or unlawfully
begotten, because eveiy nation have particular rites and
laws regarding the marriage state or connection betwixt
the sexes.” Further, it is related by Abdoolah Elm Imdm
that a person having unco in the piresenco of the Imam Jdfev
Sddik reproached a Mujoosy for being casually connected
with his own mother and sister, the Imdm rebuked that
person severely, observing, “that such was a lawful
marriage amongst them according to the tenets of their
religion,” which tenets did we not apply in our decisions
respecting their professions, these various traditions could
never have appeared upon record.
And here, as an appendage to tho«l(%al causes ^of Acknow-
succession by birth and affinity, we observe the mutual
acknowledgment of two persons with respect to each other establishes
of a relationship estabUshing the right of inheritance.
Magician, or worshipper of fire.
876
INHEBITANCE.
vithont provided both these persons be of unknown parentage and
connections. Thus, if two persons mutually recognize
each other by the titles, for example, of father and son, or
any other founding claim to succession, who ore not known
to the contrary, they are by law acknowledged as the heirs
of each other, nor can either be called upon to prove the
truth of his confession, because the right is condned to
themselves, and there is no person to oppose it, as well as
by the saying of him, on whom be peace, “ Acknowledg-
ments of sane people are valid and binding as to them-
selves.” Further, it is related by Abdool Ruhman Ebn
Ilijaj Bijily that he asked the Imdm Jdfer Sddik, upon
whom be peace, respecting a woman brought prisoner from
her own country, and with her an infant child whom she
colled her son ; and a man also a prisoner, who, meeting
by accident with his brother, recognized him by that title,
and they both knew each other, but neither could adduce
any proof of their relation except this mutual acknowledg-
ment. The reporter thus proceeds, — “ The Imdm inquired
of me my own opinion of these cases ; I observed that the
parties could not inherit from each other as having no
proof of their relationship from being bom in a foreign
country. He exclaimed, * Almighty God ! if a mother has
brought with her into captivity a son or a daughter, whom
she constantly acknowledges as such, or when a man
recognizes his brother, and they both being of sane mind
continue to acknowledge the relations, surely they must be
considered the lawM heirs of each other.’ ”
Except If, however, the acknowledging parties should be
partks?^ generally known as not related to each other by the tie,
of known whether of blood or affinity, which they allege, sueh
acknowledgment cannot in law be received, as obviously in
ne^tions. this case tending to affeef the rights of third parties ; for
tlje title of sifcc(>ssion is established by law in the known
heirs of t'he acknowledger, and his simple confession in
favour of anothbr, as tending to exclude these, or at least
to introduce a sharer in theu rights, cannot be received
without proof, altWugh verified by the person in whose
favour it is made.
POCTHINE OF SHAKES.
377
With rospect, again, to the case of parents and their Acknow*
infant children reciprocal acknowledgment is not required
by law to establish the right of succession, but on the Usufficiciit
contrary, the simple declaration of the parent, or adoption wish the
of the child as his own, is perfectly sufficient to establish chM ’s
inheritance betwixt them, as has already been fully explained
in treating of the acknowledgment of parentage, and there
is no distinction upon this point betwixt a father and
mother, as a majority of our doctors have decided.
This right of inheritance by mutual acknowledgment,
except in the instance of parent and child, is invariably
restricted to the acknowledging parties themselves, and does
by no means, according to the most prevalent opinion,
descend to their heirs, unless the latter should also verify
and avow the connection. Thus, if a person declare another
to be her brother, who on his part also avows the relation,
and they are not known to the contrary, the right of
inheritance is thereby established betwixt them as to each
other, but does not extend to the other brothers for example
of either, nor to any relations besides. It is otherwise with
respect to parents and children. If one person acknowledges
himself the father of another, who verifies and avows the
filial tie, these are not only by law the heirs of each other,
but this right also extends to all the heu's or descendants
of both. This distinction betviixt the two cases, however,
is founded upon a principle whereof the grounds ore by no
means obvious ; and the various objections thereto may bo
seen at large with their answers in their proper place.
Of the doctrine of Shares and mode of distributing Inherit-
ance,
Know that every heir whom Almighty God hath named DJstribn-
in the Kordn, and for whom lie hath allotted a specific
portion of inheritance, is by us denominaftedZoo/urj^ or a
sharer; in the same manner as we term thaf^portion of sharers,
inheritance assigned/ur^, or a sh^o ; and ftirther, that every
heir to whom a specific shard has not been allotted in and rcu-
the Book of God is called Zoo KuralMf^ or a residuary.
Literally, master of a relationship.
878
INHEBITANOE.
The
sharers
are nine
persons;
of whom
five are
sometimes
residn-
aries.
The shares
of inherit-
ance are
Two-
thirds go
to two of
more
daughters,
if %re to
no son;
Now it often happens that the same heir is in one case
a sharer, and in another a residuary. The sharers men-
tioned iE the Book of God are nine persons: a single
daughter if there be no son of the deceased ; two or more
daughters also on failure of a son ; a single sister by the
same father and mother, or by the same father oxily, if
there be no brother or grandfather ; two or more sisters
also on failure of a brother and grandfather ; a father if
there be issue of the deceased ; a mother in all situations ;
a husband and a widow in every situation ; and lastly, a
relation who is connected with the deceased, by the mother’s
side only. Of these, the first five are often residuaries also,
g as where, with a daughter or with two daughters, there is a
son ,* whore, mth a sister, or two or more sisters, there is a
brother, or grandfather ; and where, with a father, there is
no issue of the deceased. The remaining four, again, can
never in any situation be residuaries, except upon entire
failure of every heir that is capable of being associated with
them, in which case of necessity they take the whole
inheritance, first as share and then the residuum or return.
All heirs of whatsoever class or description besides these
nine are denominated simple residuaries,
3 The Foorooz or shares are six : two-thirds, a half, one-
third, a fourth, a sixth, and an eighth, agreeable to a
tradition of the Imam Mohummud Bdkir, on whom bo
peace, recorded in these words, ‘‘Yerily the shares of
inheritance' do not exceed six ; ” to which efiect there are
many other authentic documents. Nowthe persons entitled
to those shares are as follows. Two-thirds are allotted in
two cases; first to two or more daughters of the deceased
if there be no son, by unanimous assent agreeable to the
word of Almighty God : “ God hath directed you con-
cerning your chil^en ; a ftiale shall have as much as the
sh^e^of two iemales; but if there be females only and
above two they shall have two-thirds of the inheritance ; and
if there be but dne, she shall have a half.” Upon this
point the author of the Rafy^ has a passage highly worthy
1 —
• “ A com^tion of treditionB kaown also by the title of OtUmy,
from the birthplaceof its author Mokummd Juiwd,
DOOIBINE OF BBABES.
879
of question: “ Mankiiid have argued much respectiug the
right of two daughters, and whence it arises that they enjoy
by our law two-thirds of the estate, whereas Almighty God
hath expressly stipulated that they be above two in number.
Some have ascribed this decision to the general assent of
the learned independent of any other authority ; some have
attempted to deduce it from reason upon this principle, that
as one daughter has a half, it follows that two-thirds must
be the share of every member above one; others again
finding no reason, have followed the majority ; but in fact
not one of them has over discovered the true cause, which
is clearly the Divine Authority in these words, “ To a male
as much as the share of two females,” and may be thus
exemplified : — ^If a person deceased should leave only one
daughter and a son, the male has as much as two females, viz.
two-thirds, consequently two-thirds is evidently the share
allotted to two daughters ; which explanation affords sufficient
proof of the decision alluded to, and has notwithstanding
been omitted by all former writers on the subject.” The
second case of allotment of two-thirds is to two or more to
sisters of the deceased by the same father and mother, or more
by the same father only, upon failure of brothers
grandfathers ; and this also by unanimous assent on account brother or
of the saying of Almighty God : “ If a man die having no
issue, and leave a sister, she shall have half of what he
shall leave, and he is her heir if she have no issue ; but if
there be two sisters, they shall have two-thirds o'f what he
shall leave, and if there be brothers and sisters, a male
shall have as much as the share of two females.” Further,
in a tradition of the Imdm Jdfer Sddik, on whom be peace,
quoted by Bookeyr Ebn Ayoon, the word sister in this text
is explained to mean a sister either by the same father and
mother, or by the same father only; to which effect there
are also other documents. With respect, %gSin, to thtf cqse
of more than two sisters, in addition to the unanimous
assent of all our doctors, it is establish^ by traditional
record, from the particular occasion on which this portion
of the sacred text was revealed, viz.* that of a person
named Jabu,] '^tho being ill, and having seven sisters.
880
INBDBITANOK.
asked the Prophet concerning their share of his inhe-
ritance.
A half A half is the share allotted to three different persons :
danghter^ * single daughter if there be no son of the deceased,
if there bo according to the sacred text above quoted ; to one sister
to one ’ Qpoii failure of brothers and grandfathers, agreeable to the
^^on last passage of the holy hook ; and to a husband, if there
brothers he no issue, as well by unanimous assent of the learned as
divine authority. “ And ye shall have half of
and to a what your wives shall leave, if they have no issue; but if
they have issue, then ye shall have a fourth part,” &c.
issue. A third is allotted in two cases : first to a mother if
One-third not partially excluded hy children however low, or hy
^Aer.^if brothers or sisters of the deceased, who diminish her shore
not par- as formerly mentioned, and by unanimous assent according
eluded!*' to the saying of Almighty God : “ And the parents of the
deceased shall have each of them a sixth part of what is
left if there be issue ; but if there be no issue, then the
mother shall have a third, unless there should be brothers
or sisters, in which case she shall have a sixth.” Further,
in a tradition of the ImdvtJdfer Sddik, on whom be peace,
reported hy Aban Ebn Tughlub in the case of a person
deceased who left both his parents, we have this decision :
To his mother a third and the residue to his father ; ”
which decision, however, proceeds clearly on the supposition
that there were no children nor brothers of the deceased,
because these restrict the shore of the mother to a sixth, as
has already been mentioned, upon the conditions formerly
Andtotwo detailed. Secondly, this share is allotted to relations of
rek^a the deceased by the mother’s side only, if there be more
by the than one in number, whether male or female, or both,
Sdeoriy. ngrooable to the saying of Almighty God ; “ And if a man or
woman’s property bo inherited by a distant relation, and
hq Or she haVe*’a brother or sister, each of them shall
have a sixth part of the estate ; but if there be more than
one, they are (dl equal sharers in a third.” Now in a
tradition of the Imdm Jdfer Sddik, upon whom be peace,
explanatory of this' passage quoted by BookeyrEhnAyoon,
we have these words : " By brothers and sisters are here
DOCTBINE OF SHABES.
881
to bo nndorstootl those by the same mother only with the
deceased, for I particularly suggested the case of a woman
who left her husband, brothers by the same mother, and
brothers by the father also, to which he replied, ‘The
husband takes a half, or three shores ; a third or two fractions
go to the brothers and sister^ by the mother’s side, in which
male and female are alike ; and the residue to thoso by tho
same father, a male having as much thereof as the share
of two females.’ ”
Tho condition again of plurality in brotliors and sisters
by tho mother’s side to their enjoying a third is established
by unanimous assent ; but whether it is also required in
tho case of more distant maternal relations, as of a grand-
father or uncle, is a question that has admitted of contrary
solutions.
A fourth is allotted also in two cases ; to a husband, if
there bo issue, whether male or female, of his deceased h^and, ^
wife, by unanimous assent, on account of tho sacred text j*
formerly quoted; and to a widow, if there bq . no child
her husband, which is likewise established in the same widow, if
manner. It is to bo observed, however, respecting the ^^^^”®
latter, that this share is not affected in any degree by
supposing one or a plurality of wives ; for should there be
four, a fourth part only of the deceased husband’s property
is to be divided equally amongst them; and upon this
point all lawyers are agreed, both by reason of tho absolute
and unqualified sense of the sacred text, and also of a
tradition recorded by Aboo Omar Abdy from the Com-
mander of the Faithful, on whom bo peace, in these
words : “ The share of a husband can never be more than
a liftlf or less than a fourth, and that of widows never
more than a fonrth or less than an eighth ; should they be
four, or below that number, they ftre equal sharers in this
portion of inheritance ; ” to which efifect ftefe are miui^
other authentic reports. ^ *
A sixth comprehends three oases : It irf the share of a a sixth
father with children of the deceased, agreeable to the *
sacred text formerly quoted ; of a mothdi, in the case of with issne
issue ; or of brothers and sisters who occasion her partial .
• atsgeaaeo; ^
882
INHEBITANOE.
to a exclusion, as already detailed, agreeable also to the sacred
5 it is allotted to a single relation by the
or bro- 5 mother’s side only, upon which, in the case of a brother or
sister, all our doctors are agreed, by reason of the forc-
one mater- goiug sacred text, and several express traditions generally
Son”*** which, in the caho of more remote maternal
kindred, as a grandfather or uncle, has admitted a diversity
of opinion.
An eighth ^he last appointed share of inheritance, viz. on eighth,
oVa^dw ® widow with issue of her deceased husband, by
with issne. unanimous assent, mthout distinction also betwixt the
case of one and plurality ; for should there be four, this
share is to bo equally divided amongst them, of which rule
the undoubted proof has already been stated.
Combinap Of these shares some are of a nature capable of being
combined with others in one estate, and there are some
one estate, which do not admit of this combination. Of the first class
are two-thirds with one-third, as in the case of two sisters
by the same father and mother, or by the same father
only, with two or more brothers or sisters by the mother’s
side ; also with a sixth, as two daughters with any one of
the parents, or two full sisters with a brother by the same
mother only ; likewise with a fourth, as two sisters with a
widow ; and with an eighth, as in the case of two daugh-
ters with a widow of the deceased. Further, a half is
capable of being combined with a half, as in the case of a
husband with a full sister, or one by the father’s side ;
also with a 'third, as a husband with a mother, or with
brothers and sisters by the mother’s side ; likewise with a
. sixth, as in the case of a full sister, or one by the father’s
side with a sister by the same mother only ; further, with
a fourth, as a full sister with a widow, or a daughter with
a husband of the decease‘d ; and, lastly, with an eighth, as
ip the case of *a daughter and a widow. Again, a third
may be combined with the following shares : a half and
two-thirds, of both which examples have been given ; and
with a fourth, as in the case, of a widow with brothers or
.sisters by the mother only. A fourth may also be com^
bined with two-thirds, with a half, and with dne*third, of
DOOTBnTE OF 8HABES.
883
all which examples have preceded; and, lastly, with a
sixth, in the case of a widow, with any one relation by the
mother’s side only. Further, a sixth admits of combina-
tion with two-thirds, with a half, and with a fourth, as
formerly exhibited ; with a sixth, as in the case of both
parents should thero bo issue of the deceased ; and, lastly,
with an eighth, as in the case of a child with the widow
and both parents, or any one of them. To conclude, an
eighth may bo combined with two-thirds, with a half, and
with a sixth, of all which examples have been already
offered. '
Those shares of inheritance, on the other hand, which
do not admit of combination, and can never be allotted
from one and the same estate, are as follows : — Two-thirds
with two-thirds and with a half ; ono-third cannot be com-
bined with a third, nor with a sixth, nor with an eighth ;
one-eighth can never be allotted with an eighth, nor with
a fourth: and, lastly, two-fourths can never be assigned
from the same estate. This incapacity of combination in
some of the eight foregoing cases, and the various grounds
thereof, will bo evident from a retrospect to the shares and
persons entitled to them with tlio established conditions
on which they are allotted ; but a further cause of inca-
pacity in some will hereafter be made manifest when we
come to describe the nullity, according to our law, of the
doctrine of Aul, a prevailing system amongst all doctors of
the opposite sect.
And hero it is proper to describe ccrtairngeneral rules A father,
to which strict attention is indispensable. The first off,^^o{
these is, “ That a father of the deceased, upon failure of » »
issue, is not a specific sharer in the estate, but has by law
merely a residuary title to all that remains after distribu-
tion of the other shares.” Thus, if a person deceased
should leave, for example, a father, (b lUother, and a
husband, the mother, in this case, takes a third, if fiot
partially excluded by brothers or sisters; the husband also
enjoys his appointed shore, viz., a half, and the remaining
sixth is all that would go to the father ; whereas, if we
Bubstitute a widow in room of the husband, a reiidmm 6f
884
INBEBITAXCE.
Daughters
made rcsi*
duariesby
a son.
fivo-twelfths, after payment of her share and the mother’s,
would in this example he inherited by the father. By the
same rule, if the father and mother only of a person
deceased should remain, the former would receive two-
thirds of the estate, and the latter one-third, if not par-
tially excluded by brothers or sisters, whereas if these
existed, the mother’s share being consequently reduced
to a sixth, the father would enjoy five-sixths of the estate
in virtue of his residuary title.
This docti-ine admits of no difference of opinion, by
reason of an authentic report thereupon in tho collection
of Mohummud Ebn MoosUm, to this ofiect : — “ The Imdm
Mohummud Bdkir, on whom be peace, showed me a book
of inheritance dictated by the Prophet of God, and in tho
handwriting of Alyt which contained tho case of a woman
deceased, leaving her husband and both parents, whoso
estate was thus distributed: to her husband, a half, or
three fractions out of six ; to the mother, a third, or two-
sixths; and one-sixth, or tho residmm, to tho father.”
Again, in a report of Ismail Jafy, tho following decision
is quoted from the Imdm Jdfer Sddik, on whom bo peace :
— “If a man dying should leave his widow and both
parents, a fourth of his estate goes to the widow, one-
third thereof to his mother, and his fatlier inherits tho
residuum.” Further, in q, report of Aban Ebn Tnghlnb,
from the same Imdm, we have the case of a person dying
who left only her father and mother, thus divided : — “ To
the mother, a third part, or her appointed share, and all
the residuum to the father ; ” to which effect there are various
other authentic documents, all of them, however, obviously
proceeding on the supposition of failure of brothers and
sisters, who necessarily limit the mother’s share to a sixth,
as has already so often been mentioned.
The second general rule to be observed is, “ that in
didtributiou of inheritance to children of the deceased, if
amongst them there shotUd be a son, the noale has always
a portion equal to that of two females, by unanimous assent ;
wUch affords another example of a sharer becoming a
rbsiduaty, like that of a father under the foregoing general
DOCTBINE OF SHARES.
385
rule. This principle is established not only by the sacred
authority formerly xjuotod, but also by several authentic
traditions generally known. In one of these which is
reported by Ahiciil we have the following words: “The
son of AJ)oo Aiijn having expressed his ignorance and doubt
of the cause why a female, the weakest and most helpless
of the two, should enjoy only half the portion of inheritance
bestowed upon a male, some of our companions stated this
matter to the Ivu'nn Jafer Sddilc, on whom be peace; ho
replied, a female is excused from the performance of many
duties iuyjosed by law upon a male, ^ich as service in the
Holy Wars, maintenance or sirpport of relations, and
payment of oxpiatoi-y fines, and for this reason her share of
inheritance has been justly limited to half the portion of a
a male.”
This principle equally applies to sisters in distribution Also sis-
with a brother or grandfather, for they also become rcsidu-
aries like daughters with a son, unless they ai-o by the
mother’s side only, and this by unanimous assent; on
account not only of the sacred text fonnerly quoted, but
also of various traditional authorities to bo hereafter adducqd,
if it please God.
The third general rule to bo described is, “ that the Every rr-
portion of every person related to the deceased through one
of his parents, whether related also through the other or neif a
not, provided such person bo not himself a specific sharer, tokcs'^l’ii.s*
is exactly the portion of tliat parent, or in other words is portion of
the portion of that person from whom the title or relation of cotwh-
to the deceased, by however many intermediate steps, is guinity
derived, whether such mean of consanguinity was a specific dect^^ei].
sharer or not.” Thus, the children of a daughter or of two
daughters supply the place in succession of their mother’s,
taking either a half or two-thi^s of their grandfather’s
estate, and also the surplus or return shoilld\here be Any,
in the same manner as their mothera, if existing, would have
done. Again, the children of a son supply the place of
their father from whom their title is derived, and enjoy his
portion of the inheritance. And if we Suppose an assem-
blage of the children of sons and daughters, each class take
PABTlI. 0 0.
386
INHEIUTANCK.
Example
in grand-
children.
Great
grand-
children.
Brother’s
andsistcr’i
children.
Grand-
fathers
and grand.
mothers.
Uncles
and annts.
the portion of inheritance which their own root or immediate
ancestor would have enjoyed if in existence. For example,
if n person deceased should leave a son’s son and children
of a daughter, the former would receive two-thirds, and one-
third only would go to the daughter’s children. Upon the
same principle, should there be children of a son’s son,
and a daughter’s daughter, the former would have two-
thirds of the estate and one-third goes to the daughter ;
and if we substitute in the room of children a single
daughter of the sou’s son, the case is exactly the same, as
such daughter being a descendant in the male line would
still receive two-thirds or the portion of her root. Further,
if wo suppose the deceased to leave children of his daughter’s
son, and a daughter of his son’s daughter, the former as
descended from a female would inherit amongst them only
one-third of his estate, whilst the daughter would receive
two-thirds thereof. If, on the other hand, a person should
leave children of the son of one daughter, and the
daughter’s daughter of another, here, as all are descended
from a female root, the former would receive ono-holf of
the estate amongst them, and the other half would go to
the latter singly, their portions being in this case composed
both of shares, and the return. In short, each individual
or class of descendants receives the portion of his or their
own immediate ancestorsi or root, in the same manner as
that ancestor takes the portion of his root, and so on, to
the deceased.
The children also of a brother or sister, whether by the
father’s or mother’s side, receive exactly that portion of
inheritance which their parent, such brother or sister, would
have enjoyed, upon the same principle and by the same
rule with grandchildren and great-grandchildren, whether
their ancestor was a sharer or residuary. Further, the
shafe of a mammal grandfather is exactly that of a mother,
as is alsolthat of a matcraal grandmother, a paternal grand-
father's that of a father, and likewise a paternal grand-
mother’s. A paternal uncle also receives the portion of a
father through whom he is related, as does also a paternal
aunt; a maternal uncle has that of a mother throu{^
DOCTBINB OF SHABES.
887
whom his title is derived, and likewise a maternal aunt.
The children, again, of uncles, whether paternal or maternal. And their
inherit the portions of their parents ; and in general every ®***’*^”“‘
branch as representing its root in succession receives by
law the portion of inheritance assigned to that root, without
any distinction whatsoever except this, that in the secondary In the
distribution betwixt relations by both parents or by the
father’s side, attention must be always paid to sex, the *}«“ .atten-
male having a portion adequate to two females ; whereas ^ sex,*j^
amongst relations by the mother’s side only, in the distri-
bution of their ancestor’s portion males and females are une, or of
perfectly alike, there being no preference to one over the l**®®^*
other. Thus, the children of brothers or sisters by the male
samo father and mother only, the same father only, paternal
grandfathers and grandmothers, paternal full uncles and a female,
aunts, paternal half uncles and aunts if by the father’s
side, and their children, divide the portions of inheritance female lino
enjoyed by them, to a male as much as the share of two
females ; whereas the children of brothers and sisters by the
mother’s side, maternal grandfathers and grandmothers,
paternal half uncles and aunts if by the mother’s side onlj,
maternal uncles and aunts of every description and their
children, divide their portions of inheritance as derived
through the female lino equally without distinction or
preference of sex whatsoever. .This rule is universally
prevalent amongst our doctors,' and has by some been
further extended in its application to the children or
descendants of daughters, amongst'whom, in their opinion,
as equally in the female line, no distinction of sex can be
observed. This opinion is, however, now generally aban-
doned, and we may therefore lay it down as a fixed maxim,
that amongst the children of daughters as of sons, the
distribution is to a male double *the portiqp of a female,
notwithstanding their relation through the mother, consider-
ing them as in the place'of immediate offspring, td whom &e
application of the sacred text is therefore indispensable.
The traditional documents which establish the fore-
going general rule are contained first ih a report of Aboo
Ayoob, from the ImAm Jdfer Sddik, on whom be peace, io
888
INHERITANCK,
All rcla-
tioDS by
the fall*
blood, or
by the
father's
side*, are
residu-
ariestwhen
combined
with those
by the
mother’s
only.
Example
In brothers
and sistc ry.
the following effect : — It is wi-itten in the book of Alyy
on whom be peace, that a paternal aunt supplies the place
of a father in succession, a maternal aunt that of a mother,
the children of paternal uncles, in the situation of paternal
uncles, and in general every remote kinsman in the place
of that nearer relation through whom his title is derived,
unless some heir nearer to the deceased should exist, who
necessarily excludes him altogctlicr.” Further, in a report
of Soliman Ehn Khalid, from the Iindm Jdfer Sddik, on
whom bo peace, in these words: — ‘‘ The Commander of
the Faithful, Aly^ on whom be peace, always considered a
paternal aunt in the situation of a father as to inheritance,
a maternal aunt in that of a mother, a brother’s sou as a
brother, and every relation not personally entitled to a
share in the situation of that heir through whom his title
was derived.” Again, in a decision of the Imriti Moliummud
Biildr, on whom be peace, quoted by Aboo BmeeVy to this
effect: — ‘‘That being asked respecting the case of a
husband and gi’andfather, ho adjudged an equal division
betwixt them of the deceased’s property.” And, lastly, in
a judgment of the Imam Jdfer Sddik, on whom be peace,
reported by Salma Elm Maharez, upon the case of a
paternal uncle and aunt, viz., “ Two-thirds to the uncle,
and one-third to the aunt,” the reporter thus proceeds : —
“I inquired respecting ^ paternal uncle’s son with the
son of a maternal aunt. He replied, ‘ To the male double
the share of the female.’ ” And to the same effect are
various othei> authorities.
The fourth general rule to be observed is, “That
whenever an assemblage occurs of relations by both parents
or by the father’s side with relations by the mother only,
the latter, if one, takes a sixth part of the estate, or a
third in the evqpt of plurality, to be divided equally, with-
out distinctioh •f male or female, and all the residuum
goes to tBo former, divisible to a mole double the portion
of a female.” Thus, if we suppose a brother by the same
father and a sister by the mother only to exist, the latter
receives her appbinted share, viz., one-sixth of the
deceased’s estate, and the residuum^ or five-sixths, go to
DOCTWNE OF SHARES.
889
tlio brother. If, again, brothers and sisters by the father
aro combined with brothers and sisters by the mother, tho
latter receive a third part of the estate, to bo divided
equally amongst them without distinction of sex ; and
two-thirds thereof go the former, divisible to a male
double the portion of n female. Further, if wo suppose
children of a brotlicr by the mother’s side only, with tho
son of a sister of tho same father, the former would receive
only a sixth paii of tho estate as tho appointed share of
their father, to bo divided equally amongst them, and tho
remaining five-sixths would go all to the sister’s sou.
Tho same is invariably the rule with respect to all other
shares of inheritance, attention being paid in their primary
allotment to the third or preceding general rule. Thus, if Paternal
there bo children of paternal uncles or aunts of different
descriptions assembled as tho heirs of a person deceased, their Jhil-
thoso descended from one paternal half uncle or aunt by
tho same brother only with his father receive a sixth part
as the portion of their ancestor, or a third if descended
from two or more, which is divisible equally amongst them,
to a female the same as a male, and all tho residuum goes
to tho children of those half uncles and aunts who were
brothers or sisters by tho father’s side to tho deceased’s
father, divisible amongst them to a male double tho
portion of a female. Again, sltould there bo children of Maternal
maternal uncles and aunts of different descriptions, those aunts* amf
connected by tho mother’s side receive as above a sixth their chil-
part if descended from one ancestor, or a thira if from two
or more, and those by tho father’s side take all tho
residuum; but here the secondary distribution to both
classes is made without distinction of sox, a female re-
ceiving in each the same portiop with a male, because all
aro alike related to tho deceased through t]jie medium of
a female, his mother.
Lastly, we shall suppose an assemblage of the children Children
of paternal uncles of different descriptions with the chil- Md mSw-
dren of maternal uncles also varying in description ; and
here the primary distribution would be, as formerly'meu-
tioned : one-third of tlia estate to the latter class, and tho .
890
INHERITANCE.
residuum, or two-thirds, to the former. Secondly, the
third assigned to tho children of maternal uncles would he
thus distributed : — To those whose ancestor was related
only by the mother’s side, a sixth part thereof if one, or
a third in case of plurality, and the residuum to tho full
maternal uncle’s descendants, or those of one related by
the father’s side ; but the final distribution as to both
these classes would be without distinction of sex, to a
male the same portion with a female. With respect,
again, to the two-thirds first allotted to the paternal
uncle’s descendants, the secondary distribution would be
to those of a half uncle by tho mother’s side, a sixth, or a
third in case of plurality, divisible equally amongst them
without distinction of sex ; and to those of full uncles, or
of half uncles by the father’s side, all the remainder,
divisible amongst them to a male double tho portion of a
female.
This rule of inheritance is universally prevalent amongst
our doctors, and is established not only by several tradi-
tions already quoted, but also by a report of Bookeyr Ehn
Ayoon from the Imum Jdfer Sddik, on whom be peace,
in these words : “I inquired concerning the estate of a
woman deceased who had left her husband, some brothers
and sisters by tho same mother, and also brothers and
sisters by her father. Ht replied, * The husband takes
one-half of her inheritance or three fractions, one-third
goes to her brothers and sisters by tho mother, which is
to be equally divided amongst them, to a male tho same
as to a female, and the residuum or one*sixth goes to the
brothers and sisters by the father’s side, a male having
double the portion of a female, for verily the appointed
shares of an inheritance cannot be diminished by Atd (or
increasing the number of fractions), and a husband’s share
caqndt be less thSn a half in this case, nor that of brothers
and sisters by the inother less than a third, agreeable to
the saying of Almighty God : If there be more than one
they are equal shares in a third, and if only one, he or jdie
h^ a sixth part, &c.’” Further, by a tradition of tho
^ Imdm Mbhummud Betkir, on whom be peace, recorded by
DOCTBINE OF SHAKES.
891
Bookeyr in these words: “A person having asked the
iTiidm concerning the inheritance of a woman deceased,
who had left her husband, two brothers by the same
mother, and a sister by her fathci’, ho replied, ‘ Tho
husband takes a half or three fractions, a third or two
go to her brothers by tho mother, and the residuum or
ono-sixth goes to her sister by the father.’” Again, it
is recorded by Molmmmud Ebn Mooslim that he put tho
following case to tho Im/nn Mohummud Bdkir, on whom
be peace : “ A person deceased leaves the son of a sister
by his father, and a son of his sister by the mother ; how
is his estate to be divided ? The Imam decreed to tho
latter a sixth part, or his pother’s appointed share, and all
that remains to tho former,” to which effect there aro also
other traditions. Paternal
Tho last general rule to be described is, “ that when-
ever grandfathers and grandmothers, both paternal and rank
maternal, are assembled with half brothers and sisters byfl™**^.*"
tho father’s and by the mother’s side, or with their children, with full
a maternal grandfather and grandmother aro by law on an
equal footing in succession with a brother and sister by the father,
the same mother only, and a paternal grandfather
grandmother equal to a full brother and sister or to those fathers
by tho father’s side ; but should these ancestors stand Others
single in succession, that is, uppn failure of brothers and
sisters and their children, then they are considered in the side oufy.
situation of immediate parents, or of a father and mother Baton
respectively. .
This principle is established by a tradition of the and sisters
Imdm Jdfer SAdik, on whom bo peace, quotedjby Foozeyl
Ebn Yesar, in these words: “Verily a grandfather is immediate
associated in succession with brothers, his portion is equal
to one of theirs and neither mtiro nor less. Further, by
an authentic report of Aboo Buscer fron^tlle some Imdm,
in these words : “ 1 stated the case of a person who. died
leaving six brothers and a grandfather ; he replied, ‘ The
grandfather is as one of the brothers.’ ” By another
decision in the case of a brother’s bod and a grandfather,
to this effect: “The property is to bo divided equally
092
INUEIUXAXCE.
betwixt them ; ” und by another in tlie instance of a sister’s
daughtere with a grandfather, to this ofiect : “To tho
sister’s daughters one-third, and tho I'emaiudcr to tho
grandfathtr,’’ which last decision obvionsly proceeds on
tho supposition that both sister and grandfather were
related by the same side, whence the distinction of male
and female would have bestowed a double portion on tho
latter.
A single If there should bo only one heir of a person deceased,
dc^piion indmdual takes tho whole property to himself, what-
tnkes tho OYcr the nature of his title may bo, consanguineous, emaiici-
patronage, in whatsoever class or description
he may be placed, and if even the lowest or most remote
member of that class, without any distinction whatsoever,
Hnsharcr, asscnt. 'Ihe only distinction that
under two can occur is this : that where such individual or solo heir
titles”*’ happens to be of the class of sharers, ho inherits under
two separate titles ; first, his otvn appointed share and
And if a then the return as a rcsiduart/. 'Where, on the other hand,
rcsidMiT ® sharer, his simple residuary title alone
under th'is embraces the whole property at once, whether founded
title alone. emancipation, patronage, or any other ground what-
soever. Thus, if we suppose a sister by the mother’s side
to bo tho solo heiress of pci-son deceased, she receives
’ first her appointed share, viz., a sixth part of the estate,
and then the remainder as a residuary. If, again, a
brother by tho father should be sole heir, he inherits tho
whole property at once as a residuary, having no specific
share allotted to him ; and upon these two examples all
other classes and degrees may be conceived without repeti-
Except a tion. In the case of a husband, the principle is exactly
whou’ same, according to the most prevalent doctrine, but
aiirara with regard ia a widow, her residuaiy title in any case
tTto is ihost generally denied, and the grounds of its rejection
than. have already at great length been detailed.
As establishing the general principle in addition to
unanimous assent/ we have the following traditional
ddeuments First, a report of Sulma Ebn Mokuruz, from
DOCTHINE OF SHABES.
893
tho Imdm Jdfer Siiilih, on whom bo peace, to this effect :
“ I reported the death of a man who had bequeathed to
mo all his property by will, having at the same time a
daughter. The Imdm inquired if there were any witnesses
to the will, and upon my answering in the negative,
directed mo to surrender all the property to tho daughter
ns hers of right.” Secondly, by a report of Ahdoolla Ebn
Hindu from tho same Imdm, in these words : “ I inquired
concerning a person deceased who had left a brother by
his mother and no other heir besides. He replied, ‘ Tho
property goes all to that brother.’ ” Further, in tho
commentary of Aly Ebn Ibrahim, a tradition is quoted
from Bookeyr Ebn Ayoon of tho Imam Mohummnd Bdkir,
oil whom bo peace, to this effect: “If a man die leaving
nu only sister, she takes first her appointed share, viz.
one-half of his inheritance, agreeable to the sacred text, in
tho same manner as a daughter would have done if in
existence, and tho remaining half also reverts to her should
there bo no other nearer heir, in virtue of a residuary title.”
If instead of this sister there bo a brother of the deceased,
ho inherits the whole property under one general title,
agreeably to the saying of Almighty God, — “ And ho is solo
heir if there be no issue.” Agsiin, should there bo two
sisters, these receive first two-thirds of tho cstato as their
appointed share in tho Book ^f God, and the remaining
third reverts to them as residuaries.” To the same effect
are various other documents.
If there be more than one heir of a person deceased. Cose of a
some of whom do not exclude tho others from inheritance, of
then attention must be paid to their titles and lines of
descent, and if amongst them no specific sharer should
appear, the property must be divided according to their
own respective portions ; as where, for example, a person *
leaves children, male and female, in whi^baso each*of the
former has doable the portion of one of the 'latter ; land
where also he leaves brothers and sisters all by the some
iiather and mother, or by the same father only, in which
case the same rule is observed, and so^n.
If, again, amongst these heirs, neither of whom If some on
. admien.
394
JNHEBITANOB.
and some excludes any other, some sharers and some residuaries arc
nrit^tho observed, the fomcr are preferred to their appointed shares
former are in the first place, and the remainder of the estate goes to
the residuaries ; as where, for example, a woman leaves
fall shores, both her parents, her husband, and children, both male and
female, in which case the parents take a third port of her
estate betwixt them, her husband takes a fourth, and the
remaining five-twelfths go to her children, of whom a male
has the portion of two females ; and when, also, a woman
leaves her husband, a paternal and a maternal uncle, in
which case the husband takes a half, his appointed share,
her maternal uncle, being also a sharer, receives his third,
and the residue, or one-sixth only, goes to the paternal
uncle. Again, the case is exactly the some where, with
her husband, a woman leaves chil^en of her paternal and
of a maternal uncle, for here, also, the husband takes his
half, the matcimal uncle’s children, in right of their father,
a third, and the remaining sixth part goes to the children
of the paternal uncle. Upon these three examples all
similar cases may be conceived, without the trouble of
repetition ; and this preference of law to sharers over rcsi-
duaries is established not only by many traditions already
quoted, but also by a report of Akha Ebn limheer from
the I'liuim Mohummud fididr, on whom be peace, in the
case of a woman who died« leaving her husband and both
her parents, upon which this decision was pronounced :
" To the husband one-half of her estate, a third thereof to
the mother, and the residue, or ono-sixtb, to her father.”
Again, in tho case of a woman who left her husband, her
. father and mother, a decision of tho Imam Jdfer Sddik,
on whom bo peace, is recorded by Ahoo Bmeer, to this
effect : “ The distribution of her cstatq is into six equal
portions, three of which, one-half of the whole inherit-
ance, us the shflreiof her husband ; a third, or two portions,
go ‘to tho tnother ; and the residue, or one-sixth, to her
father ; ” to which effect there are various other traditional
documents. Now it has already been stated, as written in
the book of Aly, o& whom be peace, that a paternal aunt
of the deceased is exactly in the situation of a father, and
DOOTBINI! OF SHABKS.
895
a maternal annt in that of a mother, as to inheritance. It
follows, [therefore, of necessity that a paternal uncle or
aunt, and an uncle or aunt by the mother’s side, if com-
bined with a husband or widow, form a case exactly similar
to that of a father and mother of the deceased, when com-
bined with a husband or widow, without any difference or
distinction whatsoever.
If all the heirs of a person deceased should be specific Case when
sharers in the estate, without any individual amongst them are
who claims under a simple residuary title, this case admits sjiccinc
of three different suppositions — first, that the estate is and^Mr
capable of embracing and discharging all the appointed appointed
sharers without surplus or deficiency of any fraction what- exhanst
soever ; second, that it falls short of all the shares ; and
third, that, after payment of them all, a surplus of some fraction,
fraction remains. Under the first supposition no dilficulty
whatever occurs ; for each individual must, in this case,
receive his full appointed share by unanimous assent, as
when, for example, a person deceased may have left two
daughters, his father, and mother, in which case tho
former have two-thirds of the estate, or fom* fractions pro-
duced by a divisor of six, and each of the latter one of
these fractions, thus involving the whole of the deceased’s
property. In like manner, when ho may have two sisters
by the father’s side, and brothers or sisters by the mother’s,
as two-thirds go in this case to the former, and one-third
is the share of tho latter, likewise involving the whole of
the property ; or where, for example, a woman may leave
her husband and one sister by the father’s side, each of
these taking a half of her property ; and all similar cases .
in which the divisions have been already established, both
by divine and traditional authority.
Under the second supposition, again, viz., when the if the*
property falls short in distribution of fdl*tho ttppftinted
shares, and which can only happen when a husband or appointed
widow interferes, all our doctors are agrfied that the loss
or deficiency must invariably fall upon daughters or sisters invariably
of the deceased by both parents, or bjr the father’s side ;
in other words, there are only four of the appointed shams or sisters
896
INHEBITANCE.
hr the Coll of inheritance which can be affected by any deficiency
tiliTfathcr distribution, viz., the share of one daughter
and of two or more daughters, the share of one sister
and of two or more sisters, either by both parents, or by
the father only. Thus, if a woman leave her husband and
two sisters, cither by the same father and mother, or the
same father only, the husband is entitled to a half, and
the sisters to two-thirds ; consequently, tho regular divisor
of these shares is six, whereas their appointed portions
amount to one fraction more than this division would
admit of.
Again, if wo suppose with a husband of tho deceased
one sister by tho father’s side, and a sister by the mother’s,
both tho husband and first sister being entitled to a half,
and tho latter’s share being a sixth, here also a deficiency
of one-sixth would occur. Further, if wo suppose with tho
husband as above, two daughters and both parents of the
deceased, hero tho divisor being necessarily twelve, of
which three, viz., a fourth, is the husband’s share, eight,
or two-thirds, that of tho daughters, and each of tho
parents take a sixth, or two fractions, it follows that a
deficiency of three-twelfths would arise in the distribution.
Lastly, if with the husband there should bo one daughter
and both parents of tho deceased, here also a deficiency of
one-twelfth would arise, bacauso tho daughter’s share is a
half, or six fractions produced by a divisor of twelve, the
husband is entitled to a fourth, or three, and each of tho
parents to a* sixth, or two parts, in this division ,* all
which making thirteen, exceed tho estate by a twelfth.
. Let us now apply tho loss or deficiency in each of these
four examples agreeably to the principle laid down, and
affecting the shares therein mentioned, which must in-
variably guide the disti-ibhtion in all similar cases. In
the filrst exam^le^ therefore, the two sisters receive only
the half which remains after the husband’s share, instead
of two-thirds, thfis suffering tho loss of a sixth. In the
second, the sister by the father’s side submits also to tho
loss of a sixth froHa her appointed share, receiving only
two parts instead of three. The- two daughters again, in
DOCTUraE OF SHAltES.
397
tho third example, suffer a deficiency of thrcc-twelfths in
their share, receiving only tho five which remain after
payment of tho husband’s share arid that of both parents.
Lastly, in tho fourth example, the single daughter by the
same side loses one-twelfth part of tho inheritance, receiving
only five parts instead of six under a division by twelve.
This principle is established by the unanimous assent
of all our doctors, to whom God bo gracious, following tho
express conditions of our Holy Inuims, upom whom bo
the blessing of God, in such a manner as to render its
belief and practice one of the essentials of our religion :
whilst tho uniform doctrines of tho vulgar sect have insti- nut can
tuted and supported tho practice of atil ; that is, increasing
tho divisor, or number of shares, and thereby proportion- (j'cncral by
ally diminishing tho value of all in cases of defalcation in {Jo'divi^
tho estate, liy application of this practice to the four or numkr
examples wo have given, tho division in tho first would be
by seven instead of six. Of these seven ptu*ts tho husband
would receive three, and four would go to tho two sisters.
In the second example, also, the husband would receivo
three parts out of seven, tho sister by tho father’s side like-
wise three, and one-seventh part would go to the sister by
tho mother. In tho third example, again, the divisor
being increased to fifteen, the husband would receivo three
of these parts, tho two daughteij^ eight, and to each of tho
parents two-fifteenth parts of the inheritance would go by
application of this practice. Lastly, in tho fourth example,
the distribution would take place into thirteen parts instead
of twelve, whereof the husband would receive three, six
would go to tlie one daughter, and each of the parents
receive two. And a similar increase of divisors may bo
conceived in all other similar cases.
From our pure and holy Irftdm, however, upon whom AuI iS
be the peace and blessing of God, ther» rite innumerable
traditions recorded and generally known, whicii exprefisly
annul and prohibit this practice, and in which they not
only in the strongest terms deny its legality, but also
prove in the most satisfactory mannenthe perverseness of
those doctors of the vulgar sect who recommended it rihd
898
INHEBITJINCE.
applied it. In one tradition, reported by Aboo Murium
Angary from the Im&m Mohummud Bdkir, on whom be
peace, there are the following words : — “ Verily He who
knows the number of the sands of Aaliij {i.e., Almighty
God) knows also that tho appointed shares of inheritance
cannot bo increased above six.” Noav Aahij is a place in
Arabia, famed for tho extent of its sands, and the meaning
of his expression, on whom bo peace, “ tho shares cannot
bo increased above six,” is obviously this, that although
for tho convenience of distribution the number of fractions
are necessarily increased under a fixed rule, still tho six
radical shares of inheritance must be preserved, viz., two-
thirds, a half, one-third, a quarter, a sixth, and an eighth.
To which effect there is another express tradition recorded
by Bookeyr from the Imam Jdfer Sudik, on whom bo
peace, in these w’ords : — “ Tho radical shares of inherit-
ance can only be six ; they can neither bo increased above
tho number, nor can they be altered by aul; and after this
radical division, the property must bo allotted to the several
sharers who are mentioned in the Book of God.” Again,
in a report of Iltmumy from the same Im&m, on whom be
peace, we have these words : — “ Elm Ahbag was wont to
declare that He who could number the sands in tho desert of
Aaluj, knew that the radical shares of inheritance cannot
be increased above six ; ” apd to the same effect are various
‘ other authentic documents generally known.
Ifasurplus Under tho third and last supposition regarding an
should estate to be distributed, viz., that a surplus thereof shall
payment of all the shares, we observe that
tribntion this surplus rovorts by our law to the consanguineous
siumVlf ^lii^i'ers in proportion to their respective shares, and is
rovBrts to divisible amongst them either by fourths or by fifths ; for
the return, or reversion, lAlmits of no other distribution,
shdren, in Thusf if there becone daughter and the mother of a person
deebased, the latter takes first her appointed share, or a
the*propertyi tho regular divisor being six :
' the daughter has her moiety, or three parts, produced Iqr
this division ; and «-the remaining two-sixths are divided
betwixt them by fourths in the return, one-fourth to the
DOCTBINE OF SHABES.
399
mother and threo to tho daughter, corresponding, this
latter division, obviously to their original shares of the
inheritance. If, again, with a daughter there be both
father and mother of the deceased> each of tho latter taking
first a sixth part of the property, and tho daughter her
half or three-sixths thereof, tho surplus in this case of
ono-sixth returns to all proportionally, and is, therefore,
divided into five parts, one-fifth thereof to each of tho
parents, and tho remaining three to the daughter. But a
more simple and easy method of distribution, in examples
of this nature, occurs by a primary arrangement of their
shares, in cases where the return is by fourth parts into
four, and where by fifteenths into five ; and thus in tho
first example the mother would at once receive a fourth
part of tho estate, and three-fourths go to tho daughter.
Hence in every case where the surplus or return is divisible
by fourths, a primary arrangement of the whole estate into
four parts must obviously answer all tho purposes of dis-
tribution ; and in like manner where by fifths, an arrange-
ment into five will produce the true shares without any
fraction. This simple and summary method would appear
to be alluded to in a traditional report of Sulman Ebu
Mohuniz; but another authentic report of Mohummud
Ebn Mooslim affords equal support to both tho modes
defined, viz., the common and prevalent one, which com-
prehends, first, the distribution of the appointed shares,
and then division of tho surplus or return by fourths or
by fifths, and also this simple and summ^iy method of
aiTsnging the whole property at once into four parts or
into five.
It is to be observed that there is no return of any part Tt^isno
of tho surplus to a husband ; nor to a widow, whilst any hosCidor
consanguineous relation exists; ‘nor to the mother, except
on failure of brothers and sisters, who e^cltde her, as has con^-”^ ,
already been mentioned, although they do notithemsetves
inherit, nor to any relation by the mother’s side only exists (nor
whilst a relation by both parents or by the father exists, as jf
shall be hereafter at more length explained; and upon there be
these maxims all our doctors are agreed, although oppoSUd
400
INHERITANCE.
by those of the vulgar sect, who hero introduce their
nor any doctrine of anhat, following their pretended Imams, who
titTc^in Hic them to hell fire by supporting a false residuary title,
asbat, or which would coiifer the surplus or reversion of an estate
male kin- payment of the appointed shares upon the male
wMlst of the deceased’s father ; and under this title, if
consan- WO supposo tlio mother and a daughter of any person
puiiicous deceased to exist, the surplus of two-sixths of the estate
cxisto. would devolve on bis brother by the father’s side or on bis
paternal uncle’s.
The fallacy, however, of this principle has ever been
considered a fundamental and necessary part of our legal
creed, as established by the authentic traditions of our
pure and holy Ivuims, upon whom ho the blessing of God.
In one of these reported by Hoosim Znduil are the follow-
ing words ; — “ I was directed to ask the Imnm JAfvr
Sddilc, on whom ho peace, to whom doth the property of a
person deceased of right appci'tain ? to his own nearest
relation or to his Ashat ? Ho replied : — ‘ Verily it
belongs to tho nearest relation, and as to tho Asbat or
more distant male kindred, ‘ Dust in their jaws.’ ” But
in reality the sacred text of the Kordn regarding relations
by blood sufficiently demonstrates tho fallacy of tho
residnaiy title as expressed in tho commentary of Ayashi,
from Ziiraru, who quotes tlv) words of tho ImAm Afohummud
Jidkir, on whom bo pcaco : — “ Of relations by blood, some
are preferred to others in tho Book of God ; that is, some
are preferred to others in inheritance, because tho nearest
in blood to the deceased is necessarily preferred, and
excludes all more remote. Now (adds the holy Jmdm),
who is nearest to tho deceased, and who ought to have
a preference — his mother or his brothers? Is not tho
mother nearer than any brother or sister?” Again, in
the authentic dbllection of Mohommud Ehn Mooslivi, wo
have tho following details: — “The Jvidm Mohummud
Bdkir, on whom ‘bo peace, showed me a chapter on inherit-
ance in the handwriting of Aly, and dictated by the Prophet
of God, on whom and his posterity be blessing and peace.
In*' it I observed the case of a man who died leaving a
DOCTBINE OF SHAKES.
401
daughter and his mother thus decided : — To the daughter
a half, or three fractious, out of six, and to the mother, as
her share, a sixth, or one fraction ; but, for simplicity, the
property to be at once divided into four equal parts, of
which three to the daughter, and one-fourth to the mother.
Again, I observed therein the case of a man who had left
his father and a daughter thus decided : — The daughter’s
share is a half, or three portions out of six, and the father’s
a . sixth, or one portion : but the property here also, in order
to simplify the return, to bo divided into four parts, of
which three to the daughter, and one-fourth to the father.
Further, I found the case of a person leaving both parents
and a daughter thus decided : — To the daughter, as her
shore, a half, or three-sixths, and to each of the parents
a sixth, or one portion ; but to include, to reversion, the
whole property at once divided into fifths, of which three
to the ^ughter, and two to both the patents.” Further,
in a report of Stdma Ebn Mohuma, from the Imdm Jdfer
Sddik, on whom be peace, we have the following decisions :
— “ In the case of a daughter and the father, he decreed,
first, to the daughter a half, and to the father a sixth .part,
and then of the surplus, or remaining two sixths, three-
fourths to the daughter, and one-fourth to the father, by
return. In reality, the decision was the same as if the
whole property had been first divided into four equal
parts, whereof three went to the former, and one-fourth to
the latter, for these have surely a better title to the surplus
than a paternal uncle, or a brother, or afly more remote
mole relations, because Almighty God hath appointed
shares for them in his sacred word, and to them, therefore, *
the surplus must revert, in proportion to these shares.”
Again, in a tradition reported by Zurara from both these
Iindtns, on whom be peace, the foUovring words are contained :
— '* If a person deceased leave his mothAr or &ther, hi% wife
and a daughter, the distribution of his inheritance is into
twenty-four equd ports : to the vridov^ an eighth of the
whole, or three of these portions ; to the parent, whether
fisther or mother, a sixth of the whble,. or four of t^ese
parts ; and to his daughter a half, or twelve parts. Nou^
PAST n. * p <>
402
INHEBITANCK.
the surplus, or five remaining fractions, are returned to
the daughter and parent in proportion to their original
shares ; but no part of them whatsoever reverts to the wife.
If, again, he should leave both parents, his wife, and a
daughter, here also the division is into twenty-four,
whereof eight go to the parents, four to each ; three to the
widow, or one-eighth of the whole ; and twelve, or a half,
to the daughter; but tho surplus, or one twenty-fourth
part, which remains, is in this case to be divided amongst
the daughter and both parents, in proportion to their
original shares, and no part* whatever thereof reverts to the
widow. Further, if a woman deceased should leave her
father, her husband, and one daughter, tho distribution of
her estate is, in this case, into twelve, of which two parts,
or a sixth, goes to the father ; three, or a fourth, to her
husband ; and six, or a half, to the daughter ; tho surplus,
or remaining sixth, reverting to the father and daughter,
in proportion to their original shares ; but no part thereof
whatsoever going to her husband.” To this effect there
are many other authentic reports generally known.
All that has here preceded respecting the return to
consanguineous heirs in general must, however, be par-
ticularly understood as applying only to those cases where
relations by both parents or by the father are not combined
with relations by tho mother only. In other words, as
applying only to a case where all the heirs are either of
the first series of relations by consanguinity, or of the
second with this proviso, that they be all either related
by both parents or by the father, or all related by the
Maternal ' mother’s side only. If, therefore, on tho contrary, in the
relations second class of consanguineous heirs there should be some
related by both parents and some by the mother’s side
from the only, the prevalent opinion In this case is, that tho surplus
*thmofSie or retifim must W conferred on the former, to the entire
exclusion of the latter, ^d this doctrine may, indeed,
fiafo. be considered as cDstablished by unanimous assent. Thus,
if a person leave a brother or sister by the saine father and
mother, with a brother or sister by the same mo&er only,
pie* latter receives but a sixth part of tho- estate, and all
DOCTlUNli: OK SHARKS.
403
the remainder goes to the relation hy both parents, whether
a specific sharer or not, by reason of his uniting two causes
of relationship to the deceased, viz. the paternal ajpd
maternal side, in consequence of which ho enjoys a natural
preference in succession over the relation by the one side
only ; and, farther, because the loss or deficiency, should
there bo any, as whore a husband or widow of tho deceased
interferes, must invariably fall on the relation by both
sides, as already explained, whence obvious justice would
necessarily dictate his superior title to tho surplus or
return, when these do not interfere, to make up for his
loss in the other event ; and this doctrine is particularly
supported by a tradition of tho Imam Mohummud Bdkir,
on whom be peace, recorded by Mokummid Khn Mooslvm
in these words : — “ I inquired concerning the son of a
sister by the father’s side with tho son of a sister by the
same mother only. He replied, ‘ To the latter a sixth
part of the estate, and all that rehiains to the former.’ ”
Now, it is evident that, if the relation by the father’s side
were not expressly preferred, the surplus or residue in this
example, after distribution of a half and a sixth, would
necessarily have been divided betwixt the sons of both
sisters by fourths, in proportion to their specific shares ;
whereas this decision clearly demonstrates tho exclusive
preference to one. And if thjs preference is expressly con-
ferred on a relation hy tho father’s side, it must l^long
to one by both parents a fortiori^'’
i
TliO manuscript from which the preceding has been taken
concludes with several secUons which are contained in Chapter V. of
Book VII. and being all from the same authority need not to bd
repeated. There is also a section on Hermaphrodites wliich has
been omitted as of no practical utility.
INDEX.
ACKNOWLEDGMENT.
cfTcct of, in constituting marriage, 5.
of 2 iita, doubt whether it requires four witnesses, 158.
of a possessor, valid against himself, 199.
of gift and delivery of possession by donor, 204.
ofwuk/,2U.
of a child, three conditions necessary to, 289.
effect of, not defeated by child's denial on arriving at
^ puberty, 290.
by an heir of another person as being nearer to the deceased, i5.
of a deceased youth of unknown nmub as a son, entitles acknow-
ledger to his heritage, 291.
by a master of the son of his female slave,
mutual, establishes right of succession without further proof, '376.
except when the parties arc
of kuown parentage, 376.
by a parent, sufficient to establish ehild's right of succession, 377.
ADULTERY.
by a married woman, or one izk te/duf, for a revocable divorce, renders
her for ever unlawful to s&ulterer, 27.
AFFINITY.
establishment and effects of, see Marriage Prohibited,
as a cause of inheritance, see Husband and Wife.
AGENT.
for marriage cannot contract to himself, 9.
" — ■■ should bo appointed bv a woman, 11.
may be appointed to repudiate a wife, 109.
for khoijlSi must not exceed the proper dower, 135.
for sale may assert his own right of shoofA^ 180.
lawfully sell to hiltiself, t6. note.
ALMS.
see Sudukah,
APOSTASY FROM ISLAM.
morria^ cancelled by, of cither party, 29.
connubial intercourse between an apostate and his AfaosUm wife
prohibited daring the iddut, 33. #
apostate cannot inherit to a Mooslim^ 264. •
— — — male, who was by birth a Mooslim^ estate of, immodiately
. diTisiblfl among* hu hoira, 266, S68. '
406
INDEX.
APOSTASY FROM ISLAM— coniinwerf.
apostate male who was not by birth a Mooslim allowed time to re-
pent, ib,
female, estate of, not divisible till death, ih,
APPROPRIATION,
definition of, 211
how constituted, t6.
not obligatory, till ]^session is given, 212.
in deuth-illncss, valid only to the extent of a third of deceased’s
estate, ib,
conditions of
that relate to the thing appropriated, 213.
to the appropriator, 214.
to the persons for whom it is made, ib.
to the appropriation itself, 218.
that vitiate it, 219.
superintendence of, may be retained by the appropriator himself, 214.
belongs to the party for whom the appropriation
is made, if no other superintendent has been appointed, ib.
for objects of public utility, valid, 216.
by a Mooatim for unlawful objects, not valid, ib.
for the poor, how to be applied, ib.
for neighbours, how to bo applied, 216,
not valid where the object is not properly defined, 217.
for children, brethren and kindred, comprehends all equally, ib.
for one’s self, not valid, 218.
when for particular persons, possession of first sufficient, 219.
transfer of property, eficected by, 220.
in the way of God,” how to bo applied, ib.
of a muajid, or a mansion, does not ceaso though it should fall to
decay, 221.
lease of, cancelled by death of lessor, 222.
ASSETS.
how to ascertain an heir’s portion of, 320.
AUL.
described as an increase of the divisor of shores, 397.
practice of, unlawful, ib.
BEQUEST.
acceptance byiegatec necessary, 229.
of, may be partial, 230.
* heirs of legatee may accept in the event of his death, ib.
for sinful purposes, not valid, ib.
may bo revoked at any time by testator, 231.
must be of something that can be lawfully possessed, 233.
must not exceed a third of tcs&tor’s estate, ib.
amqpg several bequests in excess of third, preference, how deter-
, mined, 212.
testator’s directions respecting, must be strictly followed, 233.
for the performance of duties, some incumbent and others dis^
crctionaiy, 234.
of different p^ons, or of the same portion to different legatees, 236.
distinction between snecific, to two persons, and a bequest to each of
the two, ib. ^
*of a third shore nndividedly entiUes legatee to a third of eveiy-
« thing, 236
INDEX.
407
BEQ UEST— continued.
of a specific thing entitles him to the whole of it, if not in excess of
a third of deceased’s estate, ib.
altogether uncertain, to be into^reted by the heirs, 238
. when repugnant to another, last to be preferred, 240.
of nfatua or of future produce, valid, ib.
to a foetus, case of varied according to sex, ib.
usufructuary, valid, 241.
requires two witnesses, 242.
relating only to property may be established by one witness, ib,
to heirs, valid, 244.
to hostile infidels, invalid, tb.
to slaves of others, invalid, ib,
■ testator valid,
to a mookatub who has paid part of his ransom, 245.
to an oom-i-wuludf how to bo applied, ib,
to several persons, to be equally divided, 246.
to kindred, ib.
to a foetus valid, if bom alive, ib.
to beggars, to be applied to those of testator’s religion, 247.
to nearest of kin, ib.
docs not lapse by death of legatee before testator, ib.
of the like of a son’s portion, 253.
a daughter’s portion when testator has no other
heirs, ib.
of a child’s portion, 2.54.
of the double of a child’s portion, 255.
to the poor, of property at different places, ib.
of a slave, means one that is unblemished, ib.
of a mansion which falls down before testator’s death, 256.
joint, to an individual, and to the poor, ib.
BLEMISHES,
in man, 59.
in woman, 60.
marriage cannot bo cancelled for any other, 60, 61.
must have existed at the time of the contract, to be a ground for
cancellation, 61." •
option to cancel must bo exercised immediately on discovery of
blemish, ib.
cancellation on account of, not a divorce, ib.
does not require intervention of judge
except only in case of impotence, ib. *
in disputes regarding, how preference is to be determined, 62
BROTHEB. *
included in the second class of heirs, 280, 326.
when alone, takes the whole estate of deceased, ib.
with other brothers shares ecjpally, ib.
with sisters, takes a double j&rtion, ib.
full, excludes half by fathers side, 271. •
•— on failure of, half by father’s side copies into his plac^ 280.
half on the mother’s side, his share, ib. •
. ■ - 7 with a sistej on same side shares
equally, 281.
CHILD. _
paternity of, cut off by /tdit, 14.
■■■ — - under a semblance of right, 24, 93. •
408
INDEX.
CHILD— coRtmtiecf.
paternity of, established, thongh mother married daring iddatf 26.
' ' - — — ■ ■ may be denied at any time before acknowledgment, 154.
if born in wedlock, cannot be rejected except by lidn^ 92, ib,
r bom of a female slave, may he rejected without /idn, 92
not affiliated to her master with-
out his acknowledgment, 156.
Status of, as to freedom or slavery, 46.
once acknowledged cannot be subsequently denied, 154.
one of whose parents is u^Mooslim^ or a convert to the faith, in its
infancy is a Mooslim^ 265.
included in the first class of heirs, 324.
illegitimate has no parentage, except from mother in the case of
/tda, 91, 157, 305.
male, share double that of a female, 276.
CHILDREN.
by wives, 90.
by slaves, 92.
begotten under a semblance of right, 9.3.
suckling of, 94.
custo<ly of, 95.
CONSANGUINITY.
See Nusubf and marriage prohibited^
CONVERSION TO ISLAM.
effect of, on marriage of kitabees^ 30.
unbelievers other than kitahees^ ib,
after ancestor’s death, removes impediment to inheritance, 264.
by a parent, effect of on religion of a child, 265.
DAUGHTER.
included in the first class of heirs, 324.
share of one, 273, 276, 380.
two or more, 273, 276, 378.
is half that of a son, 276«
is a residuary with a son, 384.
DEATH-ILLNESS.
gift in, valid only as to a third of donor’s estate, 209.
toicAjfin, valid only as to a third of grantor’s estate, 212.
acts in, that are not to take effect immediately, to be treated as legacies,
256.
* to take effect immediately, difference of opinion
regarding, ib.
diseases not usually considered dangerous, 257.
dubious, ib.
general rule regarding, iA
gratuitous acts iniptake effect according to priority, ib.
Muhdoai in, ib. *
malria^e by a man in, if not consummated, void, and does not found
a title to inheriumce in widow, 295, 340.
divorce in, does not exclude widow from inheritance, th., 341.
DEBT.
gift of, not valid except \o debtor, 203.
' to debtor is a release, ib.
INDEX.
409
DECEPTION.
SJk TuMees.
DISCORD.
when it appears between sponses, arbitrator to bo appointed, 88.
in cases of, arbitrator may decide in absence of parties^ 89. ^
— arbitrator's decision must bo according to law, ib.
DISCRETION.
reqnired to remove inhibition of minority, 4 note.
fei^e having, may contract herself or another in marriage, 9.
DIVORCE.
see Repudiation.
on death-bed, when given with an intention to injure, 343.
. without intention to injnre, ib.
DOWER.
anything lawful may be the subject of, 67.
things unlawful to MoosUma may be subject of, among zimmees^ ib,
amount of, dependent on will of parties, 68.
of the Soonnutf or Traditions, is 500 dirheme, ib,
should be moderate, and any excess over amount of Soounut is
abominable, 70.
proper, how regulated, 71.
E rivate and public assignment of, 70.
usbond responsible for, unblemished, ib,
till paid, 73.
wife may refuse herself to husband till it is paid, but not when the
dower is deferred, 78.
when none mentioned in the contract, and woman is divorced before
coition, a present is due, 71.
— , is divorced after coition,' proper
dower is due, ib,
how present, and proper dower are regulated, ib,
may be settled after marriage, ib,
how to be fixed when left to be so settled, 73.
right to, established by consngimation, 74.
wife entitled to halt; if divorced before consummation, ib,
exoneration of, by wife, 75.
valid and invalid coses of, 80.
not affected l^ unlawful stipulations in contract of marriage, 76.
gift of, by wife to her husband, 77. •
becomes property of the wife by the contract, ib,
in disputes regarding, when husband's and when wife’s word is to
be preferred, 81. •
EELA,
form, 147.
conditions, 148.
laws, tb, ^
conjugal intercourse within the time of, iiAaccs expiation, 149.
of wile revocabiy repudiated, valid, 160. - *
expiation in case of, ib,
EMANCIPATION.
effect of, on marriage of female slave, 48.
male slave, 4f .
of female slave may be the subject of dower, ib,
Wula of, 296, 346.
410
INDEX.
EMANCIPATOR.
is heir to his freedman, in default of other heirs, 296, 346. *
failing him, his heirs inherit to freedman, 297, 354.
conditions of his ri^ht to inherit, 347 et seq.
and his heirs inherit to children of freedman, 355.
EQUAXITY.
in respect of Islam, a condition of marria^, 34.
— JSeman, apparently not required, ib.
free woman may many a slave, or an Arabian woman a Persian, t5.
among wives should be observed by a husband in respect of main-
tenance and general behaviour, 85.
ESCHEAT.
doctrine of, 301, 362.
in the absence of the Imdm, belongs to the poor of the sect, 301,
363.
EUNUCHISM.
a cause for the cancellation of marriage, 59.
EXCLUSION FROM INHERITANCE,
entire, 270, 363.
partial, 271, 364.
full kinsmen exclude those by Other’s side only, 332, 364.
proof of this rule, 334.
'■ ' ' ' ■ those by mother’s side only from right to
residue, 335.
proof of this rule, t5., 336.
half-kinsmen bjr father’s side exclude those by mother’s only from
right to residue, 336.
proof of this rule, ib.
EXECUTOR.
must be sane, and a Mooslim^ 248.
a slave cannot be appointed, nor a minor singly, ib,
infidel may be, to another, 249.
a woman may be appointed, ib, ^
joint, cannot act singly, ib,
— exception, i5.
may refuse to accept the office, 250.
assistant may be appointed by judge to one who is incompetent, ib,
may be removed by judge for nrand, ib,
not responsible except for neglect, ib»
, may pay himself if a creditor, ib,
cannot devolve his trust on another at death, ib,
limited like an agent, and strictly confined to the bounds of his
commission, 251.
has no authority in marriage, 8.^
qualifications of, have reference to the time of his appointment, 251.
EXPIAKON. ,
several kinds of, 142.
applicable to stfiar.*
— — — 1. Emancipation of a slave, ib,
- condidons, 143.
— 2. Fasting for two consecutive months, 144.
-v— 3. Feeding the poor, 145.
before intention to return ^ wiffi not suffiden^ 146.
INDEX.
411
EXPIATION — continued,
applicable to eela,
optional to emancipate a slave or feed the poor, 160.
EXTRACTOR.
is the smallest number by which a share can bo extracted without a
fraction, 312.
when it remains unchanged, 313.
when and how it must be multiplied. Ib, et seq,
FATHER.
included in the first class of heirs, 276, 324.
when alone, takes the whole estate, ib.
with the mother, has the residue, ib.
with children, has a sixth, 276, 381.
with one daughter, has a sixth, and participates in the return, 277.
upon failure of issue is a residuaiy, 383.
FOSTERAGE.
See Marriage. Prohibited.
GIFT.
definition of, 203.
how constituted, <6.
of debt, not valid except to debtor, ib.
to debtor is a release, ib.
not complete without possession by donee, 204.
donor’s permission necessary condition to possession of, ib.
by parent to a child of a thing in parent’s possession, complete by the
mere contr^t, ib.
of mooshdd, valid, ib,
to a blood relation cannot bo revoked, 205.
to a stranger may be revoked, ib.
to a wife or husband may bo revoked, ib.
cannot be revoked if anything has been received in exchange, ib. *
to children and relatives proper and becoming, ib.
retraction of, t5., mte. •
transfer of property by, dates from taking possession, 207.
sale by donor of thing given, not valid, ib.
on retraction of, donor not entitled to compensation for defects, 208.
retractation of, barred by taking anything in exchange, ib.
in death-illness, valid only to a third of donof s estate, 209.
GRAND-PARENTS.
included in the second class of heirs, 280. •
those on father's side take double of those on mother’s, 281 .
among themselves, grandfa^er takes double of
those^^the mother^ide t»Je half of those on father’s, 281.
■ among thems^veastake equal^, 282.
GREAT GRAND-PARENTS. • •
inherit with brethren when there are no grand-parents, 282.
GRAND UNCLES AND AUNTS.
second series of third class of heirs, 3^.
succeed on failure of uncles and aunts and their desoendaQt|, t6.
failing them, their children’s children succeed, ib.
412
INDEX.
GREAT GRAND UNCLES AND AUNTS,
third series of third class of heirs» 332.
failing them, their children’s children, ib,
GREAT GREAT GRAND UNCLES AND AUNTS.
fourth series of third class of heirs, 332.
failing them, their children’s children, ib.
GUARDIAN.
infidol, has no aathority in marriage, 10.
none bat a father or grandfather can appoint to a child, 232.
mother cannot be or appoint, ib.
cannot be appointed by a father to his son while his grandfather is
alive, 251.
testamentaiy, 251.
HEDAD.
meaning of, 165.
incumbent on a widow, ib.
not incumbent on a repudiated woman, ib.
HEIRS.
by consanguinity, 261.
three classes of, 276, 323.
each class of, preferred to that which follows it, 323.
dist class, deceased’s parents and his offspring, 324.
proof of their right, 325.
second class, grand-parents and brethren, 326.
C »f of their right, 327.
uncles and aunts and their children, 328, 329.
proof of their right, 330.
second scries o^ grand-uncles, grand-aunts, and their chil-
* dren, 331,
third scries of, great grand-nnclcs and aunts, &c., 332.
by affinity. See Husband, Wif(^
by wula. See that head.
nooBS.
See Soohna. ^
HUSBAND.
responsible for wife’s dower, 70«
bound to maintain hia wife, 83.
when he has several wives, to divide his time equally between
them, ib. ^
when he has onlv one wife threa nights are his own, two when he
has two, andDno when bo has throe, ib.
allowAl seven nignts<br consummation with a virgin, and three with
• a eiyyibapf 84.
cannot visit any of his wives during the night of another, 86.
inherits from a wiA) repudiated rcvocabty if she die during the
iddutf 294.
marriage by, in death illness, void,'i^ not consummated, 295.
shore of, in deceased wile’s estate, 273^338.
takes the residue of wife’s estate, if siu 9 has no other heir than the
Imdm, 262, 339.
INDEX.
413
IDDUT.
marriage daring, unlawful, 26, 171.
no woman, except a widow, whose marriage has not been consum-
mated, obliged to keep, 160.
of women subject to the courses, 161.
— not subject to the courses, 162.
women past child-bearing not obliged to keep, ib,
the longest possible, ih.
marriage after expiration of, void if woman should prove to have been
pregnant at time of contract, 163.
of pregnant women, ib,
of widows, 164.
of women enjoyed under a scmblable contract, 165, 172.
when to be observed by wife of missing person, 166.
of a slave, 167, 168.
woman repudiated rcvocably entitled to maintenance during, 169.
widow not entitled to maintenance during, 171.
from what time it is to run, 172.
two idduts necessary in certain cases, 173.
IMPOTENCE.
a blemish for which marriage may be cancelled, 59.
mode of establishing, 62.
INFIDEL.
cannot bo executor to a Mooalim^ 249.
may bo executor to another infidel, ib,
cannot inherit to a Mooslim^ 264, 366.
may inherit to another who has no Mooslim heir, ib,
M . though of a different persuasion, 368.
INFIDELITY.
described, 366.
an impediment to marriage. See that head.
■ — inheritance, 263, 366.
INHERITANCE.
causes of, 261, 323.
two, combining in^ne person, he inherits by both, 287.
impediments to, 263, 366.
exclusion from, 270, 363.
by Nusubox consanguinity, 276,323.
by affinity, or of spouses to each other, 294, 338.
by Wula or patronage, 296, 345. *
of a foetus in the womb, 306.
of missing persons, 307.
of persons drowned together, 308. •
of nro-worshippers, 310.
right of, not transferable, 354.
three ^ueral rules of, 332<r
full relations exclude half bf father’s side, ib,
■■■ mother’s sid%from the residue, 335.
A person having two relations to decelbed receives a twofold por-
tion, 336. • •
INSANE PERSON. •
no regard paid to words of, 4.
may bo contracted in marriage by &ther, grandfather, or judge,
7, 8. # .
wife of, may be repudiated by guardian, 108, •
414
INDEX*
INSANITY.
a cause for cancellation of marriage, 59.
JUDGE.
authoritjr of, in marriage, 8.
cancellation of marriage for a blemish docs not require his inter-
vention, except in the cose of impotence, 61.
application to, by wife of missing person, 165.
may remove an executor who has &icomo profligate, 248.
^ ; is guilty of fraud, 250.
is superintendent of estate of a deceased person who has not appointed
an executor, 251.
KHOOLA.
form of, 129.
doubt whether it be a cancellation of marriage or a repudiation, ib.
ransom for, may bo anything that is lawful as dower, 130.
valid, though entered into by a woman in her last illness, and for
more than a third of her estate, 131
not valid, when left to husband’s option, 132.
ransom for may be paid by a female slave, ib,
conditions of, on part of the husband, 133.
wife, ib,
two witnesses necessary for, 134.
nullified by conditions inconsistent with the contract, ib,
not lawful, if wife acts under compulsion, ib,
vrhen parties arc on good terms with each other, 135.
cannot bo revoked by husband till ransom is reclaimed by wife, ib,
woman who has received, cannot be repudiated, ib,
agent for, must not exceed the proper dower, ib,
in disputes regarding, how burden of proof is regulated, 136.
LEGATEE.
must be in existence at the time of bequest, 244.
LIAlf. *
its pillars, 162.
first pillar-— causes, ib,
cho^o of adultery, ib,
■ ■ ■ — • — denial of wife’s child, 153.
second pillar — imprecating husband, 165.
■ ■ must bo sane and adult, ib,
■ ■■ ■■ ■■ ■ may be a minor or slave, ib,
third pillar-imprecating wife, ib,
must be sane, adult, and neither deaf
nor dumb, ib, ^
' — married by permanent contract, ib,
fourth pillar— form, 156. I
effects of, 167. « '
not available, after wife’s death, 158.
separation by, is a cancellation of marriage, not a repudiation, 157«
MAINTENANCE.
three groumda of, 97.
of wives, ib,
■ - - not affected by being on a jonmey, 98.
INDEX.
416
MAINTENANCE^— conhniie<2.
of wives, qnantitj of, 99.
■ appendages to, 100.
■- — arrears of, recoverable, ih,
' ' debt duo by wife, may be set off against, 102.
of relatives, ih,
conditions of right to, 103.
— liability to, ih,
arrears of not recoverable, ih,
of slaves, 105.
of beasts, t&.
wife of missing person left without, may apply to judge, 165.
woman repudiated rcvocably entitled to, during iddut^ 98, 169.
irrevocably not entitled to, 98, 170.
widow has no title to, daring iddut, 171.
■ even though j^regnant, 99.
MARRIAGE.
Three kinds of, 1.
Permanent^ ih,
established by declaration and acceptance, ih,
words appropriate to declaration, ih,
to acceptance, 2.
no deviation from the proper words allowed, 3.
words by which it cannot be established, ib,
declaration and acceptance must both bo expressed in the past tense, 2 ;
or one in the past when the other is in the imperative or
future, ih,
effect of acknowledgment in constituting, 5.
laws of the contract, 4.
no regard paid to the words of an infant or insane pc^n, ih,
parties must bo distinctly indicated, 5.
option cannot be reserved accept as to dower, ih,
marriage cancelled by either party becoming slave of the
other, 6, 38.
who can contract.
a discreet female may^controct herself, 9.
cannot be contracted without her consent, 7.
consent of, how established, 9. *
. - her word as to, preferred, 12.
fethcr and grandfather may contract a minor, and on adult,
if insane, 7. •
master may contract his slave, 8.
judge mav contract an insane person, ih,
executor has similar powers, io. ,
person inhibited for prodigality cannot contract without porr
mission of judge, ib,
contract entered iopo without authority remains in suspense *
till confirmed, 9.e •
infidel guardian hu no authority, 10^
a mother has no power to contraol hA diild in nftrriage, 12.
ProhibiUd.
Caoses of Frohibitioni 13.
1. consangninity, ih,
women prohibited to a man by reason of, ib,
men prohibited to women by xiason of, ib,
established by marriage, or semblance of it, 14,
416
INDEX,
MABBIAGE^cofifmtied.
not established by zina or illicit intercourse, iL
acknowledgment of, see Nttzub,
2. fosterage.
conditions of constitution, 15.
the milk must proceed from marriage, ib,
■■ be caused by one man, 17.
, child must be suckled on same milk, for fifteen times con-
secutively, 15.
acts of suckling must be consecutive and all within two
years, 15.
efibets of.
the suckling becomes the child of foster parents, 18.
is prohibited to every child of theirs, ib,
^ its natural father is prohibited to children
of foster parents, ib,
cancels existing marriage, ib,
cases in illustration of this ctfoct, 18, 19, 20.
declaration of by a man, 21.
- - by a woman, i5.
3. affinity.
established by marriage, ib,
cifects of, when followed by coition, ib.
not followed by coition, 22.
women who cannot bo law fully conjoined as the wives of one
man, 23.
how far established by zina^ ib,
sexual intercourse under a semblance
of right, 24.
sight or touch with desire, ib,
rases of unlawful conjunction, ib,
man already married to a free woman cannot marry a slave
without her consent, 25.
woman in her iddut cannot be lawfully married, 26.
wife of one man cannot marry another, 27.
4. completion of number, 27.
no man allowed more^ than four wdves by permanent
contract, ib, '
no limit to number by temporary, or bondage, 28.
women repudiated three times cannot ^ rc-morricd till
married to another husband, ib,
— t nine times con never be rc-inarried, ib,
5. Lian, for which see that head.
i. Infidelity.
Mooalim cannot marry any but a kitabeeahf 29 ; nor any but
a Mooslimah by permanent marria^, ib,
Mooslimah cannot marry any but a JIfoosam, 30, 40.
effect of conversion to Islam on marriage of Kitabees^ 30.
■■■■ — r of other unbelievers, ib,
change of religion is cancellation of marriage, not a divorce, 83.
connoedoDS whidk an? conridered abominable, 36.
enters hito by a thrice repudiated woman on condition of its being
void after die has been legalized to her first husband, not
valid, 36. c
Shighar marriage void, 37.
Temporary,
established by dedaratifin and acoq»taiice,whidi must both bg in the
» past tense, 39.
INDEX.
417
AIA-URrAGr ^—continued,
words appropriato to its constitution, ib,
wife must bo a Mooslimah or Kitabeeah, 40.
husband of a Mfkoslimah Tnust be a Mooslim, ib.
some do\ycr must be spcciiied, 41.
some period must be fixed, otherwise the contract is permanent, 42.
no stipulation valid unless made at the time of contracf, 43
stipulation us to particular times, and as to izl, lawful, ib.
does not admit of repudiation, ib.
confer any right of inheritance, 44, 344.
iddut must be observed at expiration of term, ib.
Servile.
1. where the right is to the person of the female, 52.
no limit to the number of wives by, ib.
2 . where the right is to the usufruct, 54.
how the usufruct may be conferred, ib.
doubt as to the nature of the right, 55.
a moodubburah and oom-i-wulud may be the subject of it, ib,
ri^ht strictly limited to terms of the grant, 56.
child of a woman duly legalized is free, ib.
Of Female Slaves, see Slave.
Cancellations of, see Blemishes, and Tudlees, or Deceiition.
unlawful, confers no right of inheritance, 373.
‘ — children begotten under, and their parents, do not inherit
to each other, except in cose of error, ib.
MINOK.
no regard paid to words of, 4.
whether male or female, may be contracted in marriage by a father
or grandfather, 7.
case of two minors being married, and one of them dying before
puberty, 10.
guardian to. See Guardian.
See Puberty.
MISSING PERSON. •
wife of, left without maintenance, may apply to judge, 165.
course to bo observed by judge with regard to, io.
wife of, after expiration of her iddut, may marry a^in, 166.
proiHsrtv of, may bo divided among his heirs whc|^ it may be reason-
ably presumed that he is dead, 269.
MOOBARAT.
how efTccted, 136.
requires mutual aversion, ib.
distinction between it and khoold, 137.
MOOSLIM.
cannot many any but a kitaheeah, 29. ^
■ ■ ■■ — - Mooslimah by permanent contract, ib.
appropriation by, in favour of an alien enemj^ unlawful, 115.
described, ih,
may be heir to an infidel or apostate, and is preferred to infidel heir,
264, 366.
no infidel or lyxMstate can be heir to, ib.
child of, is a Mooslim, 267.
PART II.
E E
418
INDEX.
MOOSLIMAH,
cannot marry any but a Mooalim, note, 30, 40.
MOTHER.
has no^^wcr to contract her child in marriage, 12.'
can neither be guardian, nor appoint one, to her child, 232.
included in the first chiss of heirs 261.
her share, a third in child’s estate, 273, 276, 324, 380.
reduced to a sixtii by brethren, 272, 365, 380.
NURSE.
qualities of a proper, 17.
NUSHOOZ, or REBELLION,
defined, 87.
on first appearance of, wife may be admonished, ib,
how to be treated when exhibited by husband, 88.
NUSUB, OR CONSANGUINITY,
how established, 14.
illegitimate child has none, 14.
a cause of inheritance, 261.
acknowledgment of, 289 et seq,
testimony of two witnesses necessary to its establishment, 292.
OOM-I-WULUD.
described, 55.
not enfranchised by mere death of her master, 57.
enfranchised out of her child’s shore in her master’s estate, 49.
reverts to state of absolute slavery if her child dies before her
master, ib,
cannot be sold so long as her child lives, 57.
may be the subject of an usufruetuary marriage, 55.
baa no share in her master’s inheritance, 269.
OPTION.
described, note p. 6.
may be reserved as to dower, 5, 77.
cannot bo stipulated for in irarriage, ib,
of puberty, in what cases allowed, 10.
of emancipation, 48.
. — „ — — not allowed to male slave, 49.
PARENTAGE. ^
* establishment of, 90.
PARTITION.
of time among wives incumbent on a husband, 83.
docs not extend to coition, 84.
confined to night, ib,
free woman entitled to twioo the time of a slave, ib,
right to, abqjes on a journey, 85,
* ■ ■ ■■ ■ connmm to husband and wife, ib,
* a wife ij^ay give up her time to husband, or to a co-wife, with his
consent, ib.
infants or mad* women not entitled to, 86.
PARTNER.
in joint property mititled to pre-emption, 175.
in roails and rivulets has a right of pr^-emption to lands through
which they pass, 177.
PRE-EMPTION.
See Shoofa.
INDEX.
419
PUBERTY.
the option of, 10.
how established according to Shecahs, note, 96. * .
■ - to Hanifites, ih,
RELIGION.
change of, a cancellation of marriage, 33.
effect of, on wife’s dower, ih,
difference of, no impediment to inheritance among infidels, 266.
sect of, difference in, no impediment to inheritance among Moos-
limSf ib.
REPUDIATION.
pillars of, four in number, 107.
repudiator, first pillar, ib,
conditions required in, 108.
may appoint an agent, 109.
wife to repudiate herself, ib,
repudiated, second pillar, ib,
must be a wife by permanent contract, ib,
not be in her courses or a ni/as, 1 10.
bo a moosiubrat. 111.
distinctly indicated, ib,
provided with maintenance and residence if
repudiated rcvocably, 163.
form of, third pillar, 113.
words specially required, ib,
cannot bo in writing, ib,
words that are not sufficient, 114.
must be entirely free from condition or description, 115.
presence of witnesses, fourth pillar, 117.
one witness not sufficient, ib,
testimony of women not sufficient, 118.
different kinds of, ib.
heretical kinds of, all void, ib.^
regular kinds of, three in number, ib,
absolute or irrevocable, ib,
revocable, 119.
of the Jddut, ib.
ower of, may be committed to an agent, 109. *
y a sick man, valid though abominable, 122. *
effects of, on mutual rights of inheritance, ib,
revocation of, 126. '
for a ransom is absolute or irrevocable, 130.
revocable if ransom is reclaimed, 137.
if asked for and not given immediately is revocable,
130. •
BESIDEKCE.
See Sookna.
HESIDUARIES.
who are, 377.
some sharers are sometimes, 378.
fiither, upon fdlure of issue, is a residuaigr, 383.
daughters made, by a son, 384.
Bisters made, by brothers, 386.
420
INDEX.
BESIDIJARIES—
all relatives by the full blood, or on the father’s side, arc, when
combined with those on the mother’s only, 388.
case of plurality of heirs, who are, 393.
sharers with, are preferr<kl to their fhll shares, ih,
RETURN.
sharers when alone take surplus by virtue of right to, 262.
no right of, to wife, i6.
husband’s right to, limited to case of there being no heir, but the
Irndm^ lb.
no right to, in ushat whilst a consanguineous heir exists, 400.
maternal relations excluded from, by those of the full blood, or
half on the father’s side, 402.
SAEEBA.
a slave free suijuris^ 348.
may constitute whom he pleases his heir, ib»
Imdm his sole heir, if ho has no one responsible for his offence, ib.
SETTLEMENT.
how the word is used, 214, note,
on whom it may be made, t&.
on children, brethren, and kindred, comprehends all equally, 217.
when on several in succession, possession by the first is sufficient, 219.
when on children’s children, those of sons and daughters share equally,
221 .
on children, applicable only to children of the loins, ib*
SHARES.
number of, and persons for whom they are appointed, 273, 378.
detail of, and how allotted, 378, et seq,
that do and do not combine with bach other, 273, 382.
computation of, 312.
extractors or divisors of, ib.
■ ■ when they remain unchanged, 313.
and how they are to be multiplied, ib, et acq.
when the estate is insufficientato meet them, how the deficiency is
to be adjusted, 262, 316, 395.
— — — in excess of shares, surplus to be returned to con-
sanguineous heirs, 317, 398.
SHARERS.
number of, and who they are, 378.
when all the heirs are, and their shares exhaust the estate without
a fraction, 395.
■ — and the estate falls short of their por-
tions, ib,
SHOOFA.
definition of, 176.»
established as to laud, but not as to moveables, ib,
trees tfnd tmildings subject to, when sold with the laud, 176.
immoveable property incapable of division, not subject to, ib.
extends to a well and the a^joinine ground, ib.
fruit not subject to, though sold with the trees on which it
grows, 177. ,
land, though dividea off, subject to, by virtue of partnership in roads
and rivulets, ib.
INDEX.
421
SHO OFA,^ continued.
proi)erty disposed of by sale, alone afTected by, t6.
in which there is more than two partners, not affected by
it, 179.
right to may be asserted on the conclusion of sale, 182.
■ ■ ■ cannot be asserted partially, ib. •
not extinguished by a necessary delay in asserting it, 183.
— — by dissolution of sale, 184.
cannot be enforced on sown land until the crop is gathered, 188.
right of, hereditary, 190.
— extinguished by shufee selling his own share in the
property, 191.
— compounding it, 192.
— by delaying to claim it, without sufficient cause,
after credible information of sale, 195.
when the price cJinnot be ascertained, 190.
devices by wliich it may be evaded, ib.
disputes relative to, 198.
SHUFEE.
is every partner in joint property able to pay the price, 179.
may lose his right by delay to claim it, ib.
infidel cannot be, as against a believer, 180.
Mooelim^ may be, os against a Mooslim or unbeliever, ib.
father or grandfather selling minor’s property may assert his own
right as, ib.
entitled to claim on conclusion of a sale, 182.
must pay the full price, ib.
not affected by any augmentation of Uic price, ib.
does not benefit by any abatement of the price, 183.
does not lose liis right by a necessary delay in asserting it, ib.'
relinquishment on misintbnnation, 184, 188.
bound to use all proper diligence in preferring his claim, ib.
not affected by sales or other disposals of the property by pur-
chaser, 186.
must take the property at the full price, though it fall to decay before
his demand, ib.
entitled to any increase of fhe property which remains connected
with it, 186.
most pay the price before ho can demand delivery from the pur-
chaser, 188.
after taking possession may return the property for a defect, 192.
docs not lose his right by guaranteeing the sedo or acting os agent
for either party, ib.
SISTER.
included in the second class of heirs, 280,
share of, 273, 379.*
when alone, takes whole esta^, 280.
with brother, takes half his share, ib.
half on father’s side comes into place of fiillf i6. %
mother’s side shares equally with broUier, 281 . •
SLAVE. •
may be contracted in marriage by master, 8.
marriage of, without master’s permissiou
nnlawfal, 10, 46. ^
partially emancipated, cannot be forcea to marry, 11.
may contract himself with master’s permission, to.
permissiou or subseqncnt assent,
422
INDEX.
SLAV E — amtinued,
marriage of, hy a man already married to a free woman, unlawful, 25
■ ■ to a free woman, lawful, 34.
female may be married by permanent or tomporaiy contract, 45
master of, entitled to her dower, i5.
marriage of, may be cancelled by master's heirs, 47.
«* ■ by purchaser, 60.
male, cannot be forced, or preWnted to i-epudiate his wife, 52.
married female, prohibited to her master till separated from her
husband, 53.
purification of, t6., note,
female must be purified after every purchase or other acquisition, 53.
child of female, duly legalized, is free, 56.
female, who has borne a child to her master becomes an oom-i-wulud^ 57,
repudiated by her husband, but emancipated during idduL entitled to
inherit, 123.
emancipated for zihar must be a Moosltm, free from defects, 142.
entire property of emancipator, 143.
iddut and purification of female, 167.
purification of, when necessary, must be observed in all cases of
acquisition, 168.
may be the subject of ahoofa according to some doctors, 176.
excluded from inheritance, 267.
child of, if free, not debarred from inheriting, ib.
when sole heir, is to be purchased out of the estate, and eman*
cipated, 268.
to be ransomed out of property left by his or her children, ib.
SON.
included in the first class of heirs, 324.
when idone, takes the whole estate, 276.
two or more sons share equally, ib.
with a daughter, takes double her share, ib,
with one or both parents takes the residue, ib,
SOOKNA AND HOOBS.
re<|aires declaration and acceptance ivith possession, 226.
words by which it is constituted, ib,
rendered obligatoiy by donee’s ^sscssion, ib,
cannot be revoked, 227.
a slave or house may be devoted in this way, ib,
house or muajfid may be devoted in this way, ib,
after expirauon of term, property belongs to the devoter, ib.
SUDUKAH, OR ALMS.
^ requires declaration and acceptance with possession, 224.
cannot bo revoked, ib,
■ " bestowed on descendants of Haehem^ ib,
may be bestowed bjr a Mooalim on a zimmee^ ib,
should be given privately, 225. «
TESTATOR. ‘ *
must bo sane, and not less than ton years old, 232.
suicide, wheii will by, valid, ib,
directions of, must So strictly followed, 234.
TUDBEER,
described, note p. 65. .
cancelled by the assignment of a slave as dower, 76.
like a legacy, may be lawfully revoked, note, 70r •
t^DEX.
423
TUDLEES, OR DECEPTION.
as to freedom of husband or wife, gives the party deceived a right
to cancel marriage, 63.
as to wife’s virginity, affords no ground for cancellation, 65.
• case of two men having the wives of each other brought to them on
the night of marriage, ib, •
UNCLES AND AUNTS.
are the third class of heirs, 285, 328.
each of them excludes the children of others, as well as their own,
. 329.
exception to this rule, ib.
restricted to single case, 285, 331.
paternal — among them a male has double the portion of a female, 285.
— combined with maternal, former have two-thirds, and latter
one-third, 286.
maternal — among them all share alike without distinction of sex, 285.
on failure of, their children and children’s children succeed, 328.
VESTED INTERESTS,
described, 318, et $eq,
VIRGIN.
assent of, to marriage, may be inferred from silence, 9.
WIDOW.
always bound to observe iddut^ 160.
idtfiit of, 164.
hedadj or monming, incumbent on, 165.
has no ri^ht to maintenance daring the iddut^ 171.
share of, in husband’s estate. See Wife.
WIFE.
no man con have more than four wives by permanent contract, 27.
no limit to number of wives by temporary contract, or by right of
property, 28.
may refuse herself to her husband till dower is paid, 70.
repudiated three times unla'wlal to repudiator till married to another
husband, 120.
nine times, for ever unlawful to repudiator, 119.
rovocably, inherits to her husband if he ^e during the
iddut, 294. ^
gift by, to linsbond may be retracted, 206.
to, by husband may bo retracted, ib,
share of, in deceased husband’s estate, 273, 294, 338, 381.
who has no child docs not share in land left by her husband, 295. ^
has no right to residue of her husband’s estate, 262, 339.
term not properly applicable to woman contracted in mootd, 344,«
WILL.
definition of, 229.
by a suicide, when valid, 232. * ^
requires two witnesses for its establishment, 242. ^ *
excluding children from their share in deceased’s estate, Invalid, 238.
relating to emancipation of slaves, 245. *
for other matters relating to, see Bequest
WULA, OR PATRONAGE.
a cause of inheritance, 296, 323.
is of three kinds, 296, 345.
424
IKDEX.
•
WULA, OR PATRONAGE-coji«/»wc^l.
of emancipation, ib,
conditions of, 347 et seq.
of responsibility for offences, 301, 360.
conditions of, 360 et seq,
of Imamikt, 301, 362.
no right of inheritance founded ^n, except on failure of blood- rela-
tions, 346.
case of reciprocal, 347.
title to succession by, not transferable, 354.
shifting of, 355 et seq.
ZIIIAR.
form, 138.
conditions.
of the zihar itself, 139.
of the moozahir, or husband pronouncing it, zb,
— ■ of the tnoozahurah, or wife the subject of it, ib.
effects, 140.
prohibition of conjugal intercourse till expiation is made, 140.
expiation, see that head.
not evaded by repudiation and revocation, 140.
r— alternative of, in case of inability, 141.
ZIMMEE.
having more than four wives, must, on conversion to Islam ^ be sepa-
rated from the excess, 31.
has a right of choice in that case, ib, j
may exercise his right of choice after death of one of them, ib,
ZIMMEEAH,
what restraints may be imposed on, by a MoosUm husband, 33.
iddut of, 168.
ZINA.
effect of, in establishing; affinity, 23.
parties guilty of, may mtermar^, 27.
previous to marriage, no groundifor cancellation, 35.
INDEX
TO
ARABIC WORDS EXPLAINED IN THE TEXT.
Abik
143
Deeufc
234
Abneeat
Dejm
203
Adil
248
Dark
184
Ahl-bcit
246
ATilnAnfc
193
P!«dan ,,
257
Akft** n.n
197
TCnln ,
147
Akilas
351
Eeman
34
Ak'*'^b ,
247
Ekalut
note 113
Alat
295
Atnccn
250
Fajirah
Areent
54
Ffuiik , „„
248
Ai**
175
Firash
155
Arzoen
note ib.
Foorooz
Asheorah
246
Fakcer
247
Asmat
166
Furcczut
274
Asubah
253
Furz
261
Ateout
203
Athna-asheriat
216
Habis
227
Awl
Hail
Awlocah
Hojib
Awsocah.
248
Halu
note 110
Ayossah
54
TTAhA
, • a
Ajn
Hobbat
203
•
Hcdad
165
Haiii
1141
Wllftl
- , lfi9«
BoyA
4
Hizanut.....^
94
Boyt .............................
fift
P'nnVin ® ^
- 226
BidAut
lift
Hudd #
...• 46
Baheemab.^
Habasiw
note 227
Butturco ..........M.......
190
Hujj
98
Huluf.
157
Dar
68
Hardee
134
Deeat
Hosban
241
426
INDEX TO ABABIO WOBDS
080tt ttnoitti
note 2
ITn*K _ .
9AQ
IHmar
227
Ibahut
- /S4.
Ifzao
Ihram
Ijarah
4
IkhM .
note 204
Imam
Imamut
Qfil
In
116
Inin
59
Irish «...
234
Iskan
Ismut....
nni^ n .*1
Isteelad
57
Istibra..*
1 1 1
Izl
43
Jeeran ............
, 9-lfi
Joozam
...................................... 60
Joozz
iw................................... 237
Jub
60
Kafir
Khali
15^
Kharijee
. 42
Khftnik
122
KhnAms
301
Kiblah ......................
215
Kimnnf^
a.3
Kinfc
239
Kitabee
— - note 29
Kitabut ......................
169
Konra- ,
, , , 161
Konrbnt,
144
Koor
268
Kowm
Kows
241
al Nnshab
al NnhL
Knbeer
^ ^
.................910^6 8
Knbeerah
i ‘r
Knbz
.Siote 203
Knlalnt
262
Knm ...«
60
Kusiun
• 1«7
f
Knyxiin
......MM.** 219
Lian
00
Luhzah ^
167
Mai
Moo5mnr
.....note 877/
227*
Mooktnddah
............ 36
Moobarat
135
Moodd
145
Moodubbir
269
Mocxlubbur
ib.
Moodubburah
...,nnte 56
Moohrim
....note 27
Moohsnnnah
152
Mookatnb
244
M<v>1rAfTiKi^li
13.3
Mookatnbut
....note 269
Mookhalif
.3.5
Mookhtnllah
133
Moola
Moolain
.... , 155
Mooldnnah
........... l6a
Mooleo
1^6
Moolee-al-mowlah
Moomin
Moomineen
216
Moorahik
143
Moosa-bihi
— luho
.. 244
Moosee
232
MooshaA
Mooskin
227
]^ooalim ,
215
Mooslimah
40
Moostnbrat
MooBtnwlndah „„
143
Moostozif
35*
Moota
2
Moobibaynn
314
Moofcndiikhil
.......... t6;
Mootnllik ,
.......... 107
MootuUnkah
109
Mootiiinathil..:.«...
814
Mootawafik
l6a
Mnnfwi^nl
78
Moozato
139
Moozaknrah ,
t6a
Moozambnt 181
Howkoof
....M... 213
Mowkoof alehi ..........................
214
kCowrooB .......... ..H- ..i.A....N...M....
INDBX TO ABABIO MfbBOS.
427
Mttha1>3t
266
67
j Mubr-al-soonnut
rt Muhr-i-miBl
^ Mulir-i-mitbl
ib.
Mubullah
221
Mu j boob
148
Mujoosco
310
Mnjooscah
17
• Mnhullali
221
Musakin
........note 175
215
Mushbid
217
Musjid
185
Muskin
Muslubut
86
Nasib —
243
Kazir
219
Nifas
110
Nikah
1
]^^ikab-al>Baim
ih.
^ulilut
.* note 203
'^3'uftikat
note 97
Nufukut
ib.
Nusbooz *
87
Nusccb
239
Nusub
13
OoA
:... 237
Oom-i-wulud
note 55
Oomr.
2i6
Oomra
RiaM. „ „
.note 94
Bookbflf.. ;
- 226
Rooshd
- Riidd
... ..... 262
Buj4eo
: 118
Rnjafc. ^
. 126
Butuk
..’ 61
•
•
ShOGIlh
216
Shei
238
SJifikfllr
. 88
Shigbar
.......... — 3r
Shoofa
176
Sbufee .................................
179
'Sbttk ..................... ....t....nut..i
it*..tti...i.i.... 88
Sbureek
Siham... note 3.17
Sijyebah note 7
Sookna 226
Soonnut 68
Subce 4
Snbcel • note 211
Subeel allahi 221
Snbub 261
Sudak 35
Sndukat 211
Sudiikah 224
Sufkut 177
Sugheer note 7
Sughcerab ib,
Suhceh note 2
Subum 237
Sukunu note 226
^Baasceb 274
Tabccr note 186
Tabir note 115
Talik 116
Thuyyibah i 7
Toohr note 110
Towreet 215
Tudakhool 173
Tiidbccr. 55
Tudices 63
Tufwecz 70
Tufweez-al-Booza ib,
Tufweez-al-Mubr ib,
Tuhlccl 55
Tukail 129
Tukolloos note 270
Tulak 33
TulakBaii^ 118
Tulak Bidaut ib,
Tulak-ool-Iddut 119
Tulak-oos-Soonnut fl8
Tulak lligaee ib,
Tnmkoen 97
Tnmleek 4 '
Tuinuttoo% 3
Tnzwecf.
•
Un.. — 116
tTrj 60
Uabbubo 109
Usnluib 229
Usubit ..jf t5.
428
INEteX XO^ABABIC WORDS
Wakif 214 |
Wilaynt noitt 231
Zahir 128
b’il dark 192
Woojooh-ool-birr note 216
Wookoof 211
Wukf ih»
Zaneo 22
Zanecah 40
^ihnr , 188
Wula .1; 261
Zimmoc , T. 30
Wulec note 6
Wulud-ooz-zina 306
Wusaya note 229
Wusiyyut i6.
Wusce note 248
Zina 17
Zlraa 246
Zoafan 255
Zoaf-i-zoa£ i5.
ynnfnra 2fi2
Yaissah Ill
Yumeen 150
Zowjeeut 261
Zuvee knrabat 246
THE EXD.
.IiMidoii; Mntod t7 Bmith, KuncB MO Co.| OU Bail^i B-A
BY THE SAME AUTHQR.
A DIGEST OF MOOHUMMUDAN LAW, on the Subjects
to which it is Tisunlly applied by British Courts of Justice in India.
Containing the Doctrines of the llanifoea Code of Jurisprudence. Compiled
and Translated from Authorities in the Original Arabic, with an Intro-
duction and Explanatory Notes. Demy 8 vo. 28^.
miE MOOHUMMUDAN LAW OF SALE, according to
the Hanifcca Code. From the Futawa Alumgecrec. A Digest of the whole
Law. Prepjired by cornttiaud of the Emperor Aurungzebe Alum goer.
Selected and Traniiated from the Original Arabic, with an Introduction
and Explanatory Notes. Demy 8 vo. 14s.
THE MOOHUMMUDAN LAW OF INHERITANCE ;
With an Appendix of Authorities in the Original Arabic, pemy 8 vo.
6c/. ^
I'HE LAND TAX OF INDIA, ac^rding to the Moo-
hummndan Law. Translated from the Futawa Alumgecrec. With
Explanatory Notes, and an Introductory Essay, containing 4 Brief
Exposition of Leading Principles, and their Application to the Present
System of Land Kewenne. Demy 8 vo. 6 *. •
LONDON : SMITH, ELDER AND
CO., 15, WATERLOO PLACE,
2AS02.
ROTAL ASIAnO SOCIETY OF BBROAL UBRART
iVr
...
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